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Tully v. Polito

49 A.D.2d 954 Court N.Y. App. Div. Decision date 1975-10-28 English

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p. 954
Edwin Tully, Appellant, v Vincent A. Polito, Respondent.

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered October 15,

p. 955
1974, in favor of defendant, upon the trial court’s dismissal of the complaint at the close of plaintiff’s case, at a jury trial. Judgment affirmed, with costs. Plaintiff, as a long distance driver of defendant’s automobile, had a concurrent duty with defendant to inspect the vehicle and was negligent in failing to discover patent defects in equipment (Fried v Korn, 286 App Div 107 , affd 1 NY2d 691 ). Thus, as a matter of law, plaintiff cannot recover on his claim and the trial court was justified in dismissing the complaint. Martuscello, Acting P. J., Latham, Cohalan, Margett and Brennan, JJ., concur.

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