
    Kenneth Torgersen, Respondent, v Transervice Lease Corp., Appellant. Renee Torgersen, Respondent, v Transervice Lease Corp., Appellant. Kenneth Torgersen et al., Respondents, v Motormen Haulage et al., Appellants.
    [639 NYS2d 375]
   Issues of material fact remain as to whether defendants controlled the trailer and its contents while goods were being transported from the warehouse to the supermarket. On the one hand, defendants’ operations manager indicated in his deposition that delivery trucks are sealed at the warehouse by Waldbaum’s personnel and can only be unsealed by Waldbaum’s personnel upon arrival at a delivery point, suggesting that control of the interior of the trailer and its contents remained with Waldbaum’s. The manager also stated that the unloading of goods and any cleaning of the floor of the trailer are the responsibility of Waldbaum’s personnel. However, plaintiff asserted in a sworn affidavit that, in practice, the driver employed by defendants would "help unload the dairy cartons and cargo and * * * correct any dangerous condition in the trailer” and that such practice was adhered to on the day of this particular accident. In fact, the driver on the day of this accident acknowledged in deposition testimony that it was his practice to enter the trailer and assist in unloading the cargo, although he could not remember whether or not he had done so on the day in question.

Moreover, issues of fact remain as to whether the driver created the allegedly defective condition or had actual or constructive knowledge of its existence (see, Edwards v Terryville Meat Co., 178 AD2d 580). Plaintiff testified at his examination before trial that he slipped on brown paper that apparently had been placed on the floor of the trailer to cover the slippery substances underneath; defendants’ driver could not recall whether any such paper was present that day. However, the driver acknowledged that there had been "slip and fall” problems before, and that cargo loads had to be "secur[ed] * * * between stops” to prevent breakage. Concur — Milonas, J. P., Ellerin, Wallach, Rubin and Mazzarelli, JJ.  