Anderson v. Future Fastfreight, Inc. , 782 N.Y.S.2d 327 ( 2004 )

Appeal from an order of the Supreme Court, Erie County (Barbara Howe, J.), entered October 28, 2003. The order, insofar as appealed from, denied that part of plaintiffs motion for summary judgment on the issue of negligence.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries that he sustained when he was unloading a trailer with a forklift and defendant Brian Kennedy pulled the trailer away from the loading dock, causing plaintiff to jump from the forklift as it fell from the trailer. Supreme Court properly denied that part of plaintiffs motion seeking summary judgment on the issue of negligence. Although Kennedy admitted at his deposition that he had mistakenly attached his tractor to the wrong trailer, there was evidence in the record that, prior to pulling away from the dock, Kennedy performed several pre-trip tests on the tractor trailer that shook the trailer, and Kennedy also averred that he honked the horn. Thus, we conclude that defendants raised a triable issue of fact whether plaintiff knew or should have known that Kennedy was going to move the trailer in enough time for plaintiff to have avoided the accident (see generally Murphy v Omer Constr. Co., 242 AD2d 964, 966 [1997]). Present—Pigott, Jr., P.J., Gorski, Martoche and Hayes, JJ.