QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF A DEFECTIVE TAILGATE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined plaintiff had raised a question of fact about defendants’ constructive notice of a defective truck tailgate. Plaintiff, a truck driver, was injured when loading a pallet onto the truck (owned by defendants and rented to plaintiff’s employer). Plaintiff alleged his injury was caused by the deteriorated condition of the tailgate (a gap which caused the pallet to get stuck and then roll on the sloping tailgate). Plaintiff’s experts raised a question of fact about whether the condition developed over a period of months:

… [P]laintiff raised a triable issue of fact whether defendants had constructive notice of the alleged defects by submitting an affidavit by a licensed engineer and motor vehicle inspector who opined that the alleged defects developed over the course of months as a result of wear and tear and improper maintenance. Contrary to defendants’ contention, plaintiff’s expert’s opinions are based on evidence in the record, namely, plaintiff’s description of the alleged gap …  and the photographs that he testified accurately depicted the alleged slope at the time of his accident … , and are not inadmissible merely because the expert examined the truck more than a year after the accident occurred … . Rosada v Mendon Truck Rentals, Inc., 2017 NY Slip Op 05314, 1st Dept 6-29-17