Conroy v. Marmon Enterprises, Inc.

253 A.D.2d 839, 678 N.Y.S.2d 372, 1998 N.Y. App. Div. LEXIS 9823

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1998
• Status: Published

Opinion

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 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.