Wilhouski v. Canon U.S.A.

212 A.D.2d 525, 622 N.Y.S.2d 319, 1995 N.Y. App. Div. LEXIS 1110

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Kutner, J.), dated January 8, 1993, as granted the defendants’ motions for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the defendants appearing separately and filing separate briefs.

The cause of action pursuant to Labor Law § 240 (1) was properly dismissed because the plaintiff was not injured as a result of an elevation-related hazard (see, Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Rocovich v Consolidated Edison Co., 78 NY2d 509; Smerka v Niagara Mohawk Power Corp., 206 AD2d 891; Schreiner v Cremosa Cheese Corp., 202 ; Maracle v DiFranco, 197 AD2d 877; Carringi v International Paper Co., 184 AD2d 137).

The cause of action pursuant to Labor Law § 241 (6) was also properly dismissed because the plaintiff failed to allege that the defendants had violated an applicable regulation implementing this provision (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; D’Avila v City of New York, 205 AD2d 729; DeMattia v Van Westerhaut Mola Social & Sport Club, 204 AD2d 594; Sisu v Wolinetz, 200 AD2d 663).

The defendants are not liable for the plaintiff’s injuries under either Labor Law § 200 or the common-law negligence theory of liability because they had no duty to warn the plaintiff or his employer of dangers and conditions that were open and obvious (see, Gasper v Ford Motor Co., 13 NY2d 104; Ackermann v Town of Fishkill, 201 AD2d 441; Stephens v Tucker, 184 AD2d 828). Furthermore, the plaintiff was injured when his employer put a portion of the defendants’ property to an unintended use for which the defendants are not liable (see, DeMattia v VanWesterhaut Mola Social & Sport Club, supra; Italiano v Jeffrey Garden Apts., 3 AD2d 677, affd 3 NY2d 977). Ritter, J. P., Copertino, Joy and Hart, JJ., concur.