Heaton v. Cleveland

Appellate Division of the Supreme Court of New York

Heaton v. Cleveland

5 A.D.3d 999, 773 N.Y.S.2d 335, 2004 N.Y. App. Div. LEXIS 2838

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 2004

StatusPublished

This text of 5 A.D.3d 999 (Heaton v. Cleveland) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Heaton v. Cleveland, 5 A.D.3d 999, 773 N.Y.S.2d 335, 2004 N.Y. App. Div. LEXIS 2838 (N.Y. Ct. App. 2004).

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Opinion

Appeal from an order of the Supreme Court, Monroe County (Andrew Y. Siracuse, J.), entered November 27, 2002. The order, inter alia, granted plaintiffs cross motion for partial summary judgment on liability in a personal injury action.

[1000]*1000It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion and as modified the order is affirmed without costs.

Memorandum: Supreme Court erred in granting plaintiff’s cross motion seeking partial summary judgment on liability. Plaintiff commenced this action to recover damages for injuries she sustained when a mattress flew out of the bed of a pickup truck operated by Jackie Cleveland (defendant) on Route 390 in Rochester, allegedly striking plaintiffs motorcycle. Based upon the deposition testimony of defendant, there is an issue of fact whether the precautions he allegedly took to transport the mattress in a safe manner were reasonable (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). Indeed, based upon that deposition testimony, defendants raised an issue of fact whether the mattress struck plaintiffs motorcycle. We therefore modify the order accordingly.

We have examined defendants’ remaining contention and conclude that it is lacking in merit. Present—Green, J.P., Pine, Wisner, Gorski and Lawton, JJ.

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Appeal from an order of the Supreme Court, Monroe County (Andrew Y. Siracuse, J.), entered November 27, 2002. The order, inter alia, granted plaintiffs cross motion for partial summary judgment on liability in a personal injury action.

[1000]*1000It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion and as modified the order is affirmed without costs.

Memorandum: Supreme Court erred in granting plaintiff’s cross motion seeking partial summary judgment on liability. Plaintiff commenced this action to recover damages for injuries she sustained when a mattress flew out of the bed of a pickup truck operated by Jackie Cleveland (defendant) on Route 390 in Rochester, allegedly striking plaintiffs motorcycle. Based upon the deposition testimony of defendant, there is an issue of fact whether the precautions he allegedly took to transport the mattress in a safe manner were reasonable (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). Indeed, based upon that deposition testimony, defendants raised an issue of fact whether the mattress struck plaintiffs motorcycle. We therefore modify the order accordingly.

We have examined defendants’ remaining contention and conclude that it is lacking in merit. Present—Green, J.P., Pine, Wisner, Gorski and Lawton, JJ.

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Bluebook (online)

5 A.D.3d 999, 773 N.Y.S.2d 335, 2004 N.Y. App. Div. LEXIS 2838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heaton-v-cleveland-nyappdiv-2004.

Opinion

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