Fitzgerald v. Federal Signal Corp.
Citation | 63 A.D.3d 994,2009 NY Slip Op 05288,883 N.Y.S.2d 67 |
Decision Date | 23 June 2009 |
Docket Number | 2008-09534.,2008-02236. |
Parties | GERARD FITZGERALD et al., Appellants, v. FEDERAL SIGNAL CORPORATION, Respondent, et al., Defendants. |
Court | New York Supreme Court Appellate Division |
Ordered that one bill of costs is awarded to the defendant Federal Signal Corporation.
The plaintiffs are four firefighters who allege that they sustained permanent hearing damage while employed by the Fire Department of the City of New York (hereafter FDNY) as a result of repeated exposure to sirens manufactured by the defendant Federal Signal Corporation (hereafter Federal) and installed on FDNY fire trucks. The plaintiffs seek compensation based on Federal's alleged failure to warn them of the risk of hearing loss from prolonged exposure to the sirens. Insofar as is relevant to these appeals, Federal moved, pursuant to CPLR 3211 (a) (7), to dismiss the failure-to-warn claims insofar as asserted against it, contending, inter alia, that it owed no duty to warn as the risk of hearing loss was open and obvious. The Supreme Court granted the motion, and we affirm.
"Upon a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), the court must determine whether from the four corners of the pleading `factual allegations are discerned which taken together manifest any cause of action cognizable at law'" (Salvatore v Kumar, 45 AD3d 560, 562-563 [2007], quoting Morad v Morad, 27 AD3d 626, 627 [2006]; see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "In determining such a motion, the court may freely consider additional facts contained in affidavits submitted by the plaintiff to remedy any defects in the complaint" (Sheridan v Carter, 48 AD3d 444, 445 [2008]; see International Oil Field Supply Servs. Corp. v Fadeyi, 35 AD3d 372, 375 [2006]).
Viewing the allegations in the complaint as true, and according the plaintiffs the benefit of every...
To continue reading
Request your trial-
Baley v. Fed. Signal Corp.
...the City of New York due to repeated exposure to sirens manufactured by Federal Signal Corporation. Fitzgerald v. Federal Signal Corp., 63 A.D.3d 994, 883 N.Y.S.2d 67, 68 (2009). In that case the Superior Court Appellate Division affirmed dismissal in favor of Federal Signal, holding that t......
-
Application Of Olga Kobiashvili v. Jacobi Med. Ctr.
...... is potentially harmful to our relationship(s) with the State and Federal agencies responsible for monitoring our laboratories. Based upon the above ...Fitzgerald v. Federal Signal Corp., 63 A.D.3d 994 (2nd Dept. 2009); Farber v. ......
-
Porrazzo v. Bumble Bee Foods, LLC
......'s Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 19), and Defendants' unopposed ...1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp". v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). \xE2"... See Fitzgerald v. Fed. Signal Corp., 63 A.D.3d 994, 883 N.Y.S.2d 67, 69 (2d Dep't 2009) ......
-
Saxon Mortg. Servs., Inc. v. Hamilton
......ARLINGTON CAPITAL MORTGAGE CORP., CARL ROSEN and FRANCIS X. OUNAN, Third-Party Defendants.Index No.: ...Fitzgerald v. Federal Signal Corp., 63 A.D.3d 994 (2nd Dept. 2009); Farber v. ......