Olchovy v. L.M.V. Leasing

• Decision Date: 20 April 1992
• Citation: Olchovy v. L.M.V. Leasing, 582 N.Y.S.2d 764, 182 A.D.2d 745 (N.Y. App. Div. 1992)
• Parties: Patrick OLCHOVY, et al., Plaintiffs-Respondents, v. L.M.V. LEASING, Defendant, Fruehauf Corporation, Defendant Third-Party Plaintiff Appellant-Respondent, B.F. Goodrich Company, Third-Party Defendant Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 764

582 N.Y.S.2d 764

182 A.D.2d 745

Patrick OLCHOVY, et al., Plaintiffs-Respondents, v.L.M.V. LEASING, DefendantFruehauf Corporation, DefendantThird-Party PlaintiffAppellant-RespondentB.F. Goodrich Company, Third-Party DefendantRespondent-Appellant.

Supreme Court, Appellate Division Second Department.

April 20, 1992.

Herzfeld & Rubin, P.C., New York City(Herbert Rubin, David B. Hamm, Peter J. Kurshan and Miriam Skolnick, of counsel), for defendantthird-partyplaintiffappellant-respondent.

Calinoff & Katz, New York City(Arnold I. Katz, of counsel), for third-party defendantrespondent-appellant.

Aliazzo & McCloskey, Ozone Park (Schwartz and DiBlasi [Barry A. Schwartz and Leon D. Lazer] of counsel), for plaintiffs-respondents.

Before SULLIVAN, J.P., and LAWRENCE, EIBER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendantFruehauf Corporation appeals, as limited by its brief, from so much of an interlocutory order and judgment (one paper) of the Supreme Court, Kings County(Vinik, J.), entered February 26, 1990, as, upon a jury verdict on the issue of liability, adjudged it to be 60% at fault in the happening of the accident and the third-party defendantB.F. Goodrich Company to be 40% at fault in the happening of the accident.B.F. Goodrich Company cross-appeals from so much of the same order and judgment as apportioned fault between it and Fruehauf Corporation and directed that Fruehauf Corporation have judgment over for contribution against it to the extent of 40% of the verdict on damages.

ORDERED that the interlocutory order and judgment is affirmed, with one bill of costs payable to the plaintiffs.

The plaintiffPatrick Olchovy, a truck driver employed by B.F. Goodrich Company(hereinafter Goodrich) sustained personal injuries while loading bus tires onto a truck leased by Goodrich.The accident occurred as he was standing on a loaded lift gate at the back of a truck, when the gate tilted up and caused several tires to fall on him.Shortly before the accident, the plaintiff had complained to his supervisor at Goodrich about the lift gate of the truck and its inability to "level" parallel to the ground.In response, his supervisor had authorized mechanics employed by the defendantFruehauf Corporation to repair the lift gate.The incident occurred on the first occasion that the plaintiff had operated the lift following Fruehauf's repairs.Conflicting evidence was presented as to whether Fruehauf's employees told Goodrich that the lift gate could not be completely repaired and should be replaced.The jury returned a verdict finding Fruehauf 60%, and Goodrich 40%, at...