         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
964
CA 11-02438
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


KIMBERLY MITCHELL CONVERSE,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DOLE FOOD COMPANY, INC., DOLE FRESH
FRUIT COMPANY, DEFENDANTS-APPELLANTS,
AND LEONARD’S EXPRESS, INC., DEFENDANT.
(APPEAL NO. 3.)


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (R. ANTHONY
RUPP, III, OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

CANTOR, DOLCE & PANEPINTO, P.C., BUFFALO (STEPHEN C. HALPERN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Steuben County (Thomas
M. Van Strydonck, J.), entered September 6, 2011 in a personal injury
action. The order denied the motion of defendants Dole Food Company,
Inc. and Dole Fresh Fruit Company for summary judgment.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when the tractor-trailer she was operating was
involved in a one-vehicle rollover accident. Plaintiff alleged, inter
alia, that Dole Food Company, Inc. and Dole Fresh Fruit Company
(collectively, defendants) were negligent in the manner in which they
loaded the cargo that she was hauling, i.e., approximately 40,000
pounds of bananas. Supreme Court properly denied defendants’ motion
for summary judgment dismissing the complaint against them. Although
defendants established their entitlement to judgment by establishing
that the load was less than the maximum allowable weight under federal
law and that the contents were secured to prevent shifting during
transit, we nevertheless conclude that plaintiff raised an issue of
fact based on expert opinion sufficient to defeat the motion (see
generally Zuckerman v City of New York, 49 NY2d 557, 562).

     We reject defendants’ contention that the affidavit of one of
plaintiff’s experts, a mechanical engineer, is speculative and
conclusory. That expert opined that the static stability level of the
tractor-trailer was “unusually low,” thereby creating a high center of
gravity and an increased risk of a rollover accident. Although there
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                                                         CA 11-02438

are no industry standards regarding the static stability level, he
relied on the results of tilt-table tests conducted at the University
of Michigan Transportation Research Institute (Institute), which
evaluated the static stability level of the vehicle that plaintiff was
operating, and, inter alia, research conducted at the Institute
regarding the increased potential for rollover accidents involving
vehicles with a static stability level below a certain level (see
Edwards v St. Elizabeth Med. Ctr., 72 AD3d 1595, 1596). In light of
our determination that plaintiff raised an issue of fact, we need not
address defendants’ remaining contentions with respect to the
affidavit of plaintiff’s second expert.




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
