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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

 

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ALTHOUGH PLAINTIFF FELL OFF A LOADING DOCK WHILE WAITING TO SIGN IN TO WORK IN A BUILDING, HIS INJURY OCCURRED AT THE CONSTRUCTION SITE AND WHILE HE WAS ENGAGED IN WORK INVOLVING A GRAVITY-RELATED RISK WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT).
ALTHOUGH THE PLAINTIFF WAS STANDING ON A LADDER WHEN THE DEFECTIVE GRINDER INJURED HIM, THE LADDER DID NOT FAIL AND THE LABOR LAW 240(1) ACTION WAS PROPERLY DISMISSED; HOWEVER THE DEFECTIVE GRINDER PRESENTED A SAFETY ISSUE COVERED BY LABOR LAW 241(6) AND THE OWNER AND GENERAL CONTRACTOR MAY BE LIABLE EVEN IF THEY DID NOT SUPERVISE THE WORKSITE (FIRST DEPT). ​
PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM TWO INCIDENTS: A FORM FELL OFF A WALL ONTO PLAINTIFF; PLAINTIFF WAS INJURED BY A DEFECTIVE GRINDER (FIRST DEPT).
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM IN THIS BREACH OF CONTRACT ACTION, BASED UPON DOCUMENTARY EVIDENCE, SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
MATTER REMITTED FOR CONSIDERATION OF EXPERT EVIDENCE ABOUT WHICH ECUADORIAN STATUTE IS MOST CLOSELY ANALOGOUS TO NEW YORK’S FRAUDULENT-CONVEYANCE CRITERIA FOR PURPOSES OF NEW YORK’S BORROWING STATUTE; HERE THE ACTION ACCRUED IN ECUADOR; THE SHORTER OF THE APPLICABLE ECUADORIAN AND NEW YORK STATUTES OF LIMITATIONS WILL APPLY (FIRST DEPT).
NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT).
Tax Law Amendment Allowing New York to Collect Capital Gains Tax from a Nonresident Shareholder in an S Corporation Should Not Have Been Applied Retroactively to a Transaction Which Took Place Three and a Half Years Before the Amendment
THE DEPOSITION OF THE NONPARTY MAJORITY SHAREHOLDER IN THE COOPERATIVE REGARDING LEAKS IN THE UNITS WAS PROPER AND SHOULD NOT HAVE BEEN STOPPED AND SUPPRESSED BY THE JUDGE; SANCTIONS AGAINST PLAINTIFF’S ATTORNEY FOR FRIVOLOUS AND UNPROFESSIONAL CONDUCT WERE WARRANTED (FIRST DEPT). ​

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