Gowin v. Avox Sys., Inc.

• Decision Date: 10 November 2016
• Citation: 2016 N.Y. Slip Op. 07511,144 A.D.3d 1577,40 N.Y.S.3d 822
• Parties: David GOWIN and Joanne Gowin, Plaintiffs–Respondents, v. AVOX SYSTEMS, INC., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1577

40 N.Y.S.3d 822

2016 N.Y. Slip Op. 07511

David GOWIN and Joanne Gowin, Plaintiffs–Respondents,

v.AVOX SYSTEMS, INC., Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 10, 2016.

Barclay Damon, LLP, Buffalo (Vincent G. Saccomando of Counsel), for Defendant–Appellant.

Hogan Willig, PLLC, Amherst (Scott Michael Duquin of Counsel), for Plaintiffs–Respondents.

PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiffs commenced this action seeking damages for injuries allegedly sustained by David Gowin (plaintiff) when he tripped and fell while unloading a trailer during a delivery to a facility operated by defendant. Plaintiff testified that his fall occurred when he was walking backward out of the trailer while pulling a load on a pallet jack, and his foot caught a “lip” at the edge of the “dock plate” that served as a ramp between the trailer and the loading dock. Defendant appeals from an order denying its motion for summary judgment dismissing the amended complaint, and we affirm. Even assuming, arguendo, that defendant met its initial burden of establishing as a matter of law that the condition of the dock plate was not dangerous or defective (cf. Maio v. John Andrew, Inc., 85 A.D.3d 741, 741–742, 924 N.Y.S.2d 803

; Frazier v. Pioneer Cent. Sch. Dist., 298 A.D.2d 875, 875, 748 N.Y.S.2d 444 ), we conclude that plaintiffs raised a triable issue of fact with respect to that issue (see

Dietzen v. Aldi Inc. [New York], 57 A.D.3d 1514, 1514, 870 N.Y.S.2d 189 ; see generally

Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Contrary to defendant's contention, plaintiffs were under no obligation to rebut the conclusion of defendant's expert with an expert of their own, inasmuch as “expert testimony is not required where[, as here,] the question of whether there is an unsafe condition is within the common knowledge and experience of jurors” (Infante v. Jerome Car Wash, 52 A.D.3d 319, 320, 859 N.Y.S.2d 644 ; see

Sousie v. Lansingburgh Boys & Girls Club, 291 A.D.2d 619, 620, 738 N.Y.S.2d 396 ; Bermeo v. Rejai, 282 A.D.2d 700, 701, 724 N.Y.S.2d 442 ; see generally

Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 386, 426 N.Y.S.2d 233, 402 N.E.2d 1136 ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.