| Bloomer v Empire Forklift, Inc. |
| 2007 NY Slip Op 10461 [46 AD3d 1324] |
| December 27, 2007 |
| Appellate Division, Third Department |
| James Bloomer, Appellant, v Empire Forklift, Inc.,Respondent. |
—[*1] Zawacki, Everett & Gray, New York City (Victor A. Vincenzi of counsel), forrespondent.
Lahtinen, J. Appeals (1) from an order of the Supreme Court (Egan, Jr., J.), entered March21, 2007 in Ulster County, which granted defendant's motion for summary judgment dismissingthe complaint, and (2) from the judgment entered thereon.
Plaintiff was employed as a forklift operator at a building supply company and, on December20, 2001, he grabbed the back of a forklift's seat to assist in climbing into the seat. The seatallegedly came off the forklift causing plaintiff to fall. He did not seek medical care and hemissed no work until February 2002, when, on February 10, 2002, his back reportedly "locked"as he woke up from sleep. He subsequently commenced this action against defendant, thecompany that had serviced the forklift two weeks before the incident, alleging, among otherthings, that defendant's employee negligently serviced the forklift causing the accident.
Defendant moved for summary judgment and included an affidavit from its former employeewho had serviced the forklift stating that the work he performed did not require him to removethe seat or loosen the bolts that hold it. Defendant also urged support for its motion fromplaintiff's own testimony at his deposition in which he stated that he had used the same forkliftdaily during the two weeks before the accident and the seat was not loose. Plaintiff's opposingpapers included an affidavit from a former post office mechanic who stated that he had [*2]experience working on forklifts and that the work performed bydefendant would have required removing the seat. Supreme Court granted defendant's motionand plaintiff now appeals.
We affirm. Defendant met its threshold burden and plaintiff failed to respond with sufficientevidence to raise a triable issue (see Zuckerman v City of New York, 49 NY2d 557, 562[1980]). "Although the absence of direct evidence of causation would not necessarily compel agrant of summary judgment in favor of defendant[ ], as proximate cause may be inferred from thefacts and circumstances underlying the injury, the evidence must be sufficient to permit a findingbased on logical inferences from the record and not upon speculation alone" (Silva v VillageSq. of Penna, 251 AD2d 944, 945 [1998] [citations omitted]; see Schneider v KingsHighway Hosp. Ctr., 67 NY2d 743, 744-745 [1986]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 877[2004], lv dismissed 4 NY3d 869 [2005]; Plante v Hinton, 271 AD2d 781, 782[2000]). Here, the alleged negligence consisted of failing to replace or tighten the bolts holdingthe seat. Yet, plaintiff's own testimony established that he had used the forklift daily for the twoweeks before the accident and that he got onto it by pulling on the seat to lift himself up.Significantly, he further testified that, during such time and use, the seat was not loose.[FN*]Plaintiff did not submit an affidavit in opposition to defendant's motion or offer any explanationas to how a seat allegedly with no bolts or loose bolts would remain stable and secure for twoweeks and then suddenly come off. Based on the proof in this record, plaintiff's negligence theoryfinds support only in speculation or conjecture and, accordingly, summary judgment wasproperly granted to defendant. It is not necessary to address the other grounds for dismissalargued by defendant.
Plaintiff's contention that the doctrine of res ipsa loquitur applies is without merit since theforklift had been in the control of plaintiff's employer for two weeks since last serviced bydefendant and the bolts holding the seat were not difficult to access for those other thandefendant's mechanic (see generally De Sanctis v Montgomery El. Co., 304 AD2d 936,937-938 [2003]; Searle v Suburban Propane Div. of Quantum Chem. Corp., 263 AD2d335, 339-340 [2000]).
Cardona, P.J., Mercure, Crew III and Carpinello, JJ., concur. Ordered that the order andjudgment are affirmed, with costs.
Footnote *: Plaintiff's untimely effort, made10 months after receiving his deposition transcript, to change his testimony resulted in SupremeCourt granting defendant's motion to strike the "corrections."