                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: December 29, 2016                     523121
________________________________

WILLIAM A. BARONE,
                      Respondent,
     v                                        MEMORANDUM AND ORDER

TOWN OF NEW SCOTLAND,
                    Appellant.
________________________________


Calendar Date:   November 18, 2016

Before:   Peters, P.J., McCarthy, Lynch and Devine, JJ.

                               __________


      Murphy Burns Barber & Murphy, LLP, Albany (Stephen M.
Groudine of counsel), for appellant.

     Robert A. Becher, Albany, for respondent.

                               __________


Lynch, J.

      Appeal from an order of the Supreme Court (Hartman, J.),
entered March 30, 2016 in Albany County, which denied defendant's
motion for summary judgment dismissing the complaint.

      Plaintiff commenced this action to recover for injuries he
sustained while attempting to assist in the delivery of wood
chips to his home. In July 2013, defendant's employees, George
Klopfer and Jim Bess, stopped by plaintiff's residence with a
load of wood chips. This was an informal amenity for residents
of defendant and Klopfer had made previous deliveries to
plaintiff's property. After Klopfer backed the dump truck into
position, Bess exited the vehicle to look at horses on the
property. Klopfer explained that, to unload the chips, he pulls
a lever inside the truck, which releases a mechanism allowing the
bottom of the tailgate to open. The box is then raised
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hydraulically, releasing the chips. According to plaintiff, as
Klopfer began the discharge process, the chips became clogged in
the truck bed. As he had observed defendant's employees do in
the past, plaintiff slammed the tailgate two times in an attempt
to dislodge the chips. On the second attempt, he caught his
thumb between the tailgate and truck body causing a crush injury
to his right thumb and wrist.

      Plaintiff served a notice of claim on October 3, 2013 and
was examined pursuant to General Municipal Law § 50-h.
Thereafter, plaintiff commenced this action, asserting that
defendant's employees were negligent in permitting him to assist
without supervision in the discharge process. Following
discovery, Supreme Court denied defendant's motion for summary
judgment, finding, contrary to defendant's contentions, that the
notice of claim was sufficient and that triable issues of fact
existed as to both duty and proximate cause. Defendant appeals.

      The threshold issue pertains to the sufficiency of the
notice of claim, which defendant maintains failed to provide
notice of plaintiff's negligent supervision claim. The notice of
claim is arguably ambiguous in that it speaks to the injury
having been caused by a defect in the tailgate. Plaintiff has
acknowledged that there was no defect in the tailgate that
contributed to his injury. That said, the notice specifies the
date and time of the accident, as well as the nature of
plaintiff's injuries, and speaks to defendant's duty to supervise
the operation of the dump truck and the "entrapping condition" of
the tailgate. In our view, the notice of claim, coupled with
plaintiff's testimony at the General Municipal Law § 50-h
hearing, adequately apprised defendant as to the theory of
liability and was thus sufficient to enable defendant to
investigate the claim (see General Municipal Law § 50-e [6];
Brown v City of New York, 95 NY2d 389, 393 [2000]; D'Alessandro v
New York City Tr. Auth., 83 NY2d 891, 893 [1994]). This is
particularly so given defendant's failure to show any prejudice.

      As to the merits, we conclude that Supreme Court erred in
denying defendant's motion for summary judgment dismissing the
complaint. Supreme Court determined that there was a question of
fact as to whether Klopfer was aware of plaintiff's actions in
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slamming the tailgate and had a duty to intervene. In his
testimony, plaintiff explained that, once the chips clogged, he
called out to Klopfer to ask whether Klopfer wanted him to grab
the tailgate. Plaintiff concedes that he did not receive a
response, and that he alone determined to slam the tailgate in an
effort to loosen the clog, to no avail. Plaintiff testified
that, at this point, he called out to Klopfer asking whether he
should try again. Without hearing any response, and within 10 or
15 seconds, plaintiff once again grabbed the tailgate and slammed
it harder than the first attempt, sustaining the injury to his
hand. When asked whether Klopfer heard him call out, plaintiff
variably testified in his deposition, "I am not going to say he
did" and that "I assumed he did . . . I can't say that he did
because he didn't acknowledge and I just yelled it out with the
window open." By comparison, in his opposition affidavit,
plaintiff averred, "I am certain that he heard me." For his
part, Klopfer testified that he remained in the truck looking
straight ahead during the unloading process and neither heard
plaintiff call out nor observed him slam the tailgate. Klopfer
further explained that he had never requested that a resident
participate in the unloading process, nor had any resident ever
done so.

      The dispute centers on whether defendant owed a duty of
care to plaintiff and, if so, whether defendant's breach of duty
was a proximate cause of plaintiff's injuries. From a general
perspective, we recognize that Klopfer had a duty to exercise
reasonable care in the operation of a municipal dump truck.
Moreover, Klopfer was certainly aware of plaintiff's presence
during the unloading process. That said, the Court of Appeals
has emphasized a "reluctance to extend liability to a defendant
for failure to control the conduct of others" (Matter of New York
City Asbestos Litig., 5 NY3d 486, 493 [2005]; see Hamilton v
Beretta U.S.A Corp., 96 NY2d 222, 233 [2001]). By his testimony,
plaintiff confirmed that he acted of his own accord, slamming the
tailgate twice within only a few seconds, providing little if any
opportunity for Klopfer to respond – even if he heard plaintiff
call out (see Pink v Rome Youth Hockey Assn., Inc., 28 NY3d 994,
998-999 [2016]). There was no defect in the tailgate and the
risk of injuring one's hand when slamming a tailgate is obvious
as a matter of common sense. No resident, including plaintiff,
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had ever previously attempted to intervene in the discharge
process and, while Bess had stepped away, plaintiff knew he was
on site and could have sought his assistance. Under these
circumstances, we conclude that plaintiff's intervening action in
slamming the tailgate was the sole proximate cause of his
injuries (see Olsen v Town of Richfield, 81 NY2d 1024, 1026
[1993]; Nalepa v South Hill Bus. Campus, LLC, 123 AD3d 1190, 1191
[2014], lv denied 25 NY3d 909 [2015]; Dickinson v Dowbrands,
Inc., 261 AD2d 703, 703 [1999], lv denied 93 NY2d 815 [1999]).
It follows that defendant's motion for summary judgment
dismissing the complaint should have been granted.

     Peters, P.J., McCarthy and Devine, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, motion granted and complaint dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
