Date published: Dec 19, 2018


On September 21, 2015, plaintiffs purchased several large shrubs from a nursery owned and operated by the defendant in the Town of Colonic Following the purchase, the defendant’s employee, Gregory Greene, loaded the shrubs onto a wagon and transported them to the rear of the plaintiffs’ pick-up truck. A surveillance video of the defendant’s parking lot shows that as Greene began loading the shrubs into the bed of the pick-up truck, plaintiff James Bunkoff stood on the rear passenger tire of the truck and hoisted himself into the truck bed. The video does not depict the events that ensued because the camera angle and time stamp displayed across the top of the video obstruct the view of the inside of the truck bed. However, the video does show that within seconds of stepping into the truck bed, Mr. Bunkoff fell from the passenger side of the truck onto the pavement. The video reveals that at the time of the fall, Greene was standing next to the wagon of shrubs and plaintiff Diane Bunkoff was standing next to the open passenger door of the truck. Notably, neither Greene nor Mrs. Bunkoff can identify what caused Mr. Bunkoff to fall, and Mr. Bunkoff has no recollection of the incident at all.

Plaintiffs thereafter commenced this action seeking to recover damages based upon allegations that Greene was negligent in loading the shrubs into the truck bed, that defendant was negligent in failing to properly train its employees to safely load materials, and that defendant created a dangerous condition by “launching an instrumentality of harm”. Following the joinder of issue and discovery, the defendant filed the present motion for summary judgment dismissing the complaint on the ground that plaintiffs are unable to identify the cause of Mr. Bunkoff’s fall or establish that a dangerous condition existed. Plaintiffs oppose the motion.



Since the defendant satisfied its initial burden on the motion, it is incumbent upon the plaintiffs to oppose the motion with sufficient evidence to create a triable issue of fact. In opposition, plaintiffs contend that because Greene was in the process of loading shrubs into the back of the truck at the time of the incident, there remains the possibility that the shrubs were a tripping hazard that contributed to Mr. Bunkoff’s fall. However, there is no evidence in the record to support the theory that either the presence of the shrubs or any conduct on Greene’s part played any role in Mr. Bunkoff’s fall. Under these circumstances, a jury would be required to speculate as to the cause of Mr. Bunkoff’s fall. Given that plaintiffs’ opposition to the motion is based on sheer speculation, they have failed to raise a material issue of fact sufficient to defeat the motion. Summary judgment in the defendant’s favor is therefore warranted (see, Pascucci v MPM Real Estate, LLC, 128 AD3d at 206 [2015]; Smith v Mahoney, 91 AD3d at 1259 [2012]; Dalinedesroches v Lazard, 70 AD3d 626 [2010]; Martin v Wilson Mem. Hosp., 2 AD3d 938, 939 [2003]).

For the foregoing reasons, it, is

ORDERED the motion is granted, without costs, and the complaint is dismissed.

This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for the defendant. The original papers are being transferred to the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is hot relieved from the provision of that rule regarding filing, entry, or notice of entry.

Related Post

Leave a Reply

Your email address will not be published. Required fields are marked *

2 × 3 =