Lisa Lee Heaton, Respondent, v. Jackie Cleveland et al., Appellants

Lisa Lee Heaton, Respondent, v Jackie Cleveland et al., Appellants. [773 NYS2d 335] [MAJORITY] Appeal from an order of the Supreme Court, Monroe County (Andrew Y. Siracuse, J.), entered November 27, 2002. The order, inter alia, granted plaintiffs cross motion for partial summary judgment on liability in a personal injury action. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion and as modified the order is affirmed without costs. Memorandum: Supreme Court erred in granting plaintiff’s cross motion seeking partial summary judgment on liability. Plaintiff commenced this action to recover damages for injuries she sustained when a mattress flew out of the bed of a pickup truck operated by Jackie Cleveland (defendant) on Route 390 in Rochester, allegedly striking plaintiffs motorcycle. Based upon the deposition testimony of defendant, there is an issue of fact whether the precautions he allegedly took to transport the mattress in a safe manner were reasonable (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). Indeed, based upon that deposition testimony, defendants raised an issue of fact whether the mattress struck plaintiffs motorcycle. We therefore modify the order accordingly. We have examined defendants’ remaining contention and conclude that it is lacking in merit. Present—Green, J.P., Pine, Wisner, Gorski and Lawton, JJ.