Bonanno v. Fred Heyrich Industrial Services, Inc.

188 A.D.2d 295

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1992
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Bertram. Katz, J.), entered on or about December 16, 1991, which, inter alia, denied defendants-appellants’ motions for summary judgment, unanimously affirmed, without costs.

The IAS Court properly determined that the affidavit of plaintiffs expert raises an issue of fact as to whether the air preheater manufactured by defendant Air Preheater should have contained the safety devices described therein (see, Micallef v Miehle Co., 39 NY2d 376). We also agree that the parties’ depositions and plaintiffs employer’s final report of the accident raise issues of fact as to whether, inter alia, defendant Air Preheater was under a duty to warn of the absence of such safety devices (see, Bolm v Triumph Corp., 33 NY2d 151), and whether outside contractor defendant Fred Heyrich Industrial Services exercised such control over plaintiff and the accident site as to make it liable under Labor Law §200.

We have reviewed appellants’ contentions and find them to be without merit. Concur — Murphy, P. J., Wallach, Ross, Asch and Rubin, JJ.