Torts · MBE-tested

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

49 A.D.2d 954·New York Supreme Court, Appellate Division·1975·NY

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Opinion

Edwin Tully, Appellant, v Vincent A. Polito, Respondent. [MAJORITY] In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered October 15, 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.