M & G Convoy, Inc. v. Clark Disposal Service, Inc. , 600 N.Y.S.2d 787 ( 1993 )

Yesawich Jr., J.

Appeal from an order of the Supreme Court (Prior, Jr., J.), entered November 9, 1992 in Albany County, which denied defendants’ motion for summary judgment dismissing the complaint.

At a busy truck terminal, defendant Gary Nebauer, an employee of defendant Clark Disposal Service, Inc., a refuse disposal concern, was unable to gain access to dumpsters which he was planning to empty into his refuse truck because of the location of one of plaintiffs automobile transport tractor trailers. After waiting a minute or so Nebauer, whose truck was 40 to 50 feet from the tractor trailer, hand-signaled a nearby employee of plaintiff, Harold Henderson, in a manner which, in effect, asked Henderson to move the tractor trailer. There is record evidence from which it can be inferred that at or about the time Nebauer signaled to Henderson, or at the very latest when Henderson entered the tractor trailer, Nebauer observed John Karian, another employee of plaintiff, underneath the trailer and between its wheels. The evidence suggests that Nebauer may have had ample opportunity to warn Henderson of the danger to Karian if Henderson moved the tractor trailer—assertedly the tractor engine had to run approximately 60 seconds before there was even enough pressure to release the brakes—but failed to do so before Karian was run over.

In the circumstances of this case, we find that Nebauer, for whose benefit and at whose request Henderson acted, had a duty to warn Henderson of Karian’s presence (cf., Valdez v Bernard, 123 AD2d 351, 352). Inasmuch as factual issues exist with regard to whether Nebauer negligently discharged that duty and, if so, whether his conduct in that regard was a proximate cause of Karian’s injuries (see, Barber v Merchant, 180 AD2d 984, 986), denial of defendants’ motion for summary judgment was proper.

Weiss, P. J., Mikoll and Mercure, JJ., concur. Ordered that the order is affirmed, with costs.