Plaintiff alleged injuries sustained by walking into a forklift parked in front of defendant's premsises, but the First Department dismissed the complaint, in Pinto v. Selinger Ice Cream Corp., which was decided on January 22, 2008.

Plaintiff testified at deposition that he was very familiar with the premises, including defendant's custom of parking the forklift on the sidewalk, which defendant used as a driveway and loading bay for its ice cream distribution business. As plaintiff turned the corner just before the incident, he saw the forklift from 100 feet away. As he walked closer, he heard someone call to him from across the street, and turned his head toward the voice, and then walked squarely into the forklift, and fell.

Noting evidence that the forklift was bright yellow, the court concluded that, under these circumstances, the forklift was readily observable by the reasonable use of one's senses, and that plaintiff's inattentiveness was the sole proximate cause of the accident.

The court gave short shrift to plaintiff's deposition testimony that the sidewalk was cluttered with crates, noting its inconsistency with his other deposition testimony that he didn't notice anything other than the forklift and another parked vehicle, which he could only say was either a car or a truck, and disregarding it as a generic statement calculated to create a feigned issue.