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Conroy v. Marmon Enterprises, Inc.

253 A.D.2d 839 Court N.Y. App. Div. Decision date 1998-09-28 English

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p. 839
Daniel Conroy, Appellant, v Marmon Enterprises, Inc., Defendant and Third-Party Plaintiff-Respondent. Garden World, Inc., Third-Party Defendant-Respondent.
[678 NYS2d 372]

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Lerner, J.), dated August 28, 1997, which, upon a jury verdict finding the plaintiff 65% at fault, the defendant third-party plaintiff Marmon Enterprises, Inc., 10% at

p. 840
fault, and the third-party defendant, Garden World, Inc., 25% at fault in the happening of the accident, and upon the granting of the motion of the defendant third-party plaintiff Harmon Enterprises, Inc., and the third-party defendant Garden World, Inc., pursuant to CPLR 4404 for judgment as a matter of law, dismissed the complaint.

Ordered that the judgment is affirmed, with one bill of costs.

The plaintiff was injured when he fell off a forklift on which he was standing as it traveled over a speed bump, which had a 6-inch gap in it for drainage purposes. The plaintiff has failed to present any evidence that the defendant third-party plaintiff, Harmon Enterprises, Inc., the owner of the premises, was negligent, because he failed to establish that the speed bump was defective or constituted a dangerous condition (see, Pilato v Diamond, 209 AD2d 393 ). Horeover, to the extent that the plaintiff admitted to standing on the forklift for his convenience, he assumed the risk of injury (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308 , 315; Elardo v Town of Oyster Bay, 176 AD2d 912 , 914, citing Kush v City of Buffalo, 59 NY2d 26 , 33; Sands v Bonnie View, 230 AD2d 902 ). Hangano, P. J., Sullivan, Florio and HcGinity, JJ., concur.

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