Wilhouski v. Canon U.S.A.

• Decision Date: 06 February 1995
• Citation: 622 N.Y.S.2d 319,212 A.D.2d 525
• Parties: Stanley WILHOUSKI, Appellant, v. CANON U.S.A., et al., Respondents (and Two Third-Party Actions).
• Court: New York Supreme Court — Appellate Division

Page 319

622 N.Y.S.2d 319

212 A.D.2d 525

Stanley WILHOUSKI, Appellant, v. CANON U.S.A., et al., Respondents (and Two Third-Party Actions).

Supreme Court, Appellate Division Second Department.

Feb. 6, 1995.

Jeffrey S. Lisabeth, Garden City (Tedone & Tedone, Matthew A. Tedone, Albertson, on the brief), for appellant.

Jones Hirsch Connors & Bull, New York City (James P. Connors and Deborah Sachs Feit, of counsel), for respondent Canon U.S.A.

Lester Schwab Katz & Dwyer, New York City (Steven B. Prystowsky and Howard Strongin, of counsel), for respondents We're Associates, Inc. and We're Associates Co.

Before RITTER, J.P., and COPERTINO, JOY and HART, JJ.

MEMORANDUM BY THE COURT.

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 N.Y.2d 841, 616 N.Y.S.2d 900, 640 N.E.2d 1134; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932; Smerka v. Niagara Mohawk Power Corp., 206 A.D.2d 891, 616 N.Y.S.2d 114; Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 609 N.Y.S.2d 322; Maracle v. DiFranco, 197 A.D.2d 877, 602 N.Y.S.2d 481; Carringi v. International Paper Co., 184 A.D.2d 137, 591 N.Y.S.2d 600).

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 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82; D'Avila v. City of New York, 205 A.D.2d 729, 613 N.Y.S.2d 435; DeMattia v. Van Westerhaut Mola Social & Sport Club, Inc., 204 A.D.2d 594, 612 N.Y.S.2d 196; Sisu v. Wolinetz, 200 A.D.2d 663, 606 N.Y.S.2d 763).

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 N.Y.2d 104, 242 N.Y.S.2d 205, 192 N.E.2d 163; Ackermann v. Town of Fishkill, 201 A.D.2d 441, 607 N.Y.S.2d 384; Stephens v. Tucker, 184 A.D.2d 828, 584 N.Y.S.2d 667). Furthermore, the plaintiff was injured when his employer put a portion of ...