CONROY v. Garden World, Inc., Third-Party Defendant-Respondent.

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Supreme Court, Appellate Division, Second Department, New York.

Daniel CONROY, Appellant, v. MARMON ENTERPRISES, INC., Defendant Third-Party Plaintiff-Respondent; Garden World, Inc., Third-Party Defendant-Respondent.

Decided: September 28, 1998

Before MANGANO, P.J., and SULLIVAN, FLORIO and McGINITY, JJ. Rosenberg, Minc & Armstrong, New York City (Gary Silverstein, of counsel), for appellant. Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Paul S. Devine, of counsel), for defendant third-party plaintiff-respondent. O'Connell & Gimble (Mark D. Lefkowitz, New York City, of counsel), for third-party defendant-respondent.

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 Marmon 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, Marmon 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 A.D.2d 393, 618 N.Y.S.2d 446).   Moreover, 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 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666;  Elardo v. Town of Oyster Bay, 176 A.D.2d 912, 914, 575 N.Y.S.2d 526, citing Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 449 N.E.2d 725;  Sands v. Bonnie View on Lake George, 230 A.D.2d 902, 646 N.Y.S.2d 855).


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