        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

597
CA 13-02009
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND DEJOSEPH, JJ.


MICHAEL A. PISCITELLO AND NANCY A. PISCITELLO,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

FORTRESS TRUCKING, LTD., 781100 ONTARIO, INC.,
CHRISTINA STANKO, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


JAMES A. PARTACZ, WEST SENECA, FOR PLAINTIFFS-APPELLANTS.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MICHAEL T.
FEELEY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Deborah
A. Chimes, J.), entered April 1, 2013. The order, insofar as appealed
from, denied in part the motion of plaintiffs for partial summary
judgment.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by plaintiff Michael A. Piscitello (plaintiff) when
he fell from the top of a tractor-trailer owned by defendants Fortress
Trucking, Ltd. and 781100 Ontario, Inc. and operated by defendant
Christina Stanko. Plaintiff was on a platform taking a sample of oil
from the tractor-trailer when Stanko, believing that plaintiff had
finished, started to drive away. Plaintiffs moved for partial summary
judgment on liability. Supreme Court granted the motion only with
respect to the issue of serious injury, determining that there are
issues of fact with respect to the issue of negligence and thus that
plaintiffs are not entitled to partial summary judgment on liability
(see generally Ruzycki v Baker, 301 AD2d 48, 51). We affirm.
Plaintiffs failed to meet their initial burden of establishing that
Stanko’s alleged negligence was the sole proximate cause of the
accident and that plaintiff was free from comparative negligence as a
matter of law (see Thoma v Ronai, 82 NY2d 736, 737; Haberman v Burke,
116 AD3d 921, 922; Day v MTA Bus Co., 94 AD3d 940, 941). In any
event, viewing the evidence in the light most favorable to the
nonmoving party, we conclude that in opposition to the motion,
defendants raised issues of fact with respect to those issues (see
Azeem v Cava, 92 AD3d 821, 821; Guzman v Bowen, 38 AD3d 837, 838).
                                 -2-                           597
                                                         CA 13-02009

     Contrary to plaintiffs’ contention, they are not entitled to
summary judgment on the basis of the doctrine of res ipsa loquitur.
Here, the evidence submitted by plaintiffs in support of their motion
established that the inference of negligence is not inescapable and
that this is not “the exceptional case in which no facts are left for
determination” (Morejon v Rais Constr. Co., 7 NY3d 203, 212; see
Dengler v Posnick, 83 AD3d 1385, 1386). Even assuming, arguendo, that
plaintiffs established that plaintiff’s fall would not have occurred
in the absence of negligence and that his fall was caused by an
instrumentality solely within Stanko’s control, we conclude that
plaintiffs did not prove that the accident was not caused by any
action by plaintiff (see generally Kambat v St. Francis Hosp., 89 NY2d
489, 494; Dengler, 83 AD3d at 1386; Perrin v Chase Equip. Leasing,
Inc., 9 AD3d 839, 840).




Entered:   June 20, 2014                       Frances E. Cafarell
                                               Clerk of the Court
