Camacho v. City of New York

—Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered April 3, 1995, denying the motion of third-party defendant United Parcel Service (UPS) for summary judgment dismissing the third-party complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted. The Clerk is directed to enter judgment in favor of third-party defendant-appellant dismissing and severing the third-party action.

Plaintiff, a delivery man employed by UPS, alleges that he was injured when the wheel of his loaded hand truck became caught in a defect in the sidewalk, causing the hand truck to tip over, as a result of which he fell to the ground and was injured. In their third-party complaint, Park-Tre Realty Corp. and Frank’s Sport Shop, Inc., the owner and tenant, respectively, of the abutting premises, allege that overloading of the hand truck caused the accident and that UPS, plaintiff’s employer, failed to supervise and train him properly in the use of a hand truck.

It was error to deny UPS’ motion for summary judgment dismissing the third-party complaint. Plaintiff unequivocally testified at his deposition that a crack in the sidewalk caused his hand truck to tip over, as a result of which he fell. No competent proof was offered that overloading of the hand truck caused the accident, much less that inadequate training by UPS in the use of a hand truck contributed to its happening. Since there is no showing whatsoever that anything other than the sidewalk defect caused the accident, UPS’ motion for summary judgment should have been granted. Concur — Murphy, P. J., Sullivan, Ellerin, Ross and Mazzarelli, JJ.