Upon the foregoing papers, the respective motions for summary judgment of defendant B.P.M. Realty Co.("B.P.M") is granted, and of defendant V-Trucking, Inc. ("V-Trucking") is denied.

This matter arises out of an accident which occurred on July 22, 2002, on a loading dock located at 147-05 Guy Brewer Boulevard, Jamaica, New York. Plaintiff, the president of D & L Trucking, claims that he was caused to sustain extensive personal injuries due to defendants' improper loading of his truck and/or the defective nature of their premises. Essentially, plaintiff alleges that defendants, their agents, servants and employees were negligent in loading a five-foot high pallet of cosmetics onto his truck in such a way that a portion thereof extended past the rear of the truck. Accordingly, plaintiff was forced to re-position the pallet with the aid of a "pallet jack". Plaintiff says that he asked a warehouse worker to assist him in moving the pallet, but claims that when he pulled "back" from inside the truck, the worker's failure to push from the other side caused him to injure his back.

B.P.M. claims in support of its motion for summary judgment that, notwithstanding its ownership of the premises, it owed no duty of care to plaintiff since (1) he was on his own truck when the accident occurred; (2) he was not injured as the result of any dangerous condition on the premises; and (3) B.P.M. was an out-of-possession landowner at the time of the incident, having entered into a lease of the premises to codefendant V-Trucking. In opposition, plaintiff alleges that a structural defect in the loading dock may have triggered the accident, and that B.P.M.'s oral agreement with V-Trucking was for the use of only a portion of the loading dock.

In support of its separate motion for summary judgment, defendant V-Trucking claims that, notwithstanding its status as warehouseman, its duty to plaintiff ended when the goods were delivered to the "tail" of his truck. According to this defendant, a warehouseman is under no duty [*2]to enter into or upon the recipient's truck. Moreover, it is claimed that plaintiff was aware that neither the forklift nor its operator is permitted to enter the truck. In opposition to this motion, plaintiff cites his own deposition testimony to the effect that the forklift operator left the five-foot high bundle of freight in a dangerous and improper position, i.e., "hanging" off the back of the truck, and that it was this negligent act on the part of the forklift operator that necessitated his attempt to move it manually.

It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320). Once that initial burden has been satisfied, the burden shifts to the party opposing the motion to produce sufficient evidence of the existence of a material issue of fact requiring a trial (id.). The court's role on such a motion is solely to determine whether any such issues exist (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395). Moreover, because summary judgment is a drastic measure that deprives a party of his or her day in court, it may be granted only where no genuine issue of material fact is presented (see Ugarriza v. Schmieder, 46 NY2d 471). If there is any doubt as to the existence of a triable issue, the motion must be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223; Stone v. Goodson 8 NY2d 8).Here, in view of the lack, e.g., of a written lease, B.P.M. has failed to satisfy its burden of demonstrating prima facie that it had relinquished control of the subject area to the codefendant. Accordingly, it cannot be determined as a matter of law whether it is entitled to claim the status of an out-of- possession landlord. However, plaintiff's conclusory allegation of a structural defect is inadequate and insufficient to raise an issue of fact concerning B.P.M.'s negligence.

However, codefendant V-Trucking has failed to meet its evidentiary burden. In particular, this court must accept plaintiff's allegation that defendant V-Trucking's forklift operator was negligent in leaving the bundle of freight protruding from the rear of plaintiff's truck. Further, it is plaintiff's contention an employee of defendant V-Trucking agreed to help him push the shipment forward from the deck into the truck.

Accordingly, it is

ORDERED, that defendant's V-Trucking's motion for summary judgment is denied; and defendant's B.P.M.'s motion for summary judgment is granted.

E N T E R,

Dated:April 24, 2007/s/ Philip G. MinardoJ.S.C.