Fontana v. Perfection Cobey Co.

Order unanimously affirmed, with costs. Memorandum: Plaintiff was injured when the body of a dump truck he was operating dislodged from the chassis and hydraulic cylinder and fell on the cab of the truck. An inspection of the truck after the incident revealed that the failure occurred at the point where brackets and bolts were used to attach the cylinder to the body of the truck. Defendant Perfection Cobey Co. (Perfection), the manufacturer of the brackets, moved for summary judgment on the ground that plaintiff and the remaining defendants did not establish that the brackets failed and that the failure was a proximate cause of the accident.

Special Term correctly denied the motion. The pretrial testimony annexed to the affidavit of Perfection’s counsel which, to the extent it favors plaintiff, we accept as true (see, Waldron v Wild, 96 AD2d 190 , 192), presents an issue of fact whether the parts supplied by Perfection were the cause of the accident. (Appeal from order of Supreme Court, Erie County, Kuszynski, J.—summary judgment.) Present—Dillon, P. J., Hancock, Jr., Doerr, Green and Schnepp, JJ.