Opinion
15408-15408A Index No. 303308/13E Case No. 2021–01232
03-01-2022
Julio VALERIO, Plaintiff–Appellant, v. 265 MCCLELLAN REALTY, INC., Defendant, Morales 167th Hardware Corp., doing business as Morales Hardware, et al., Defendants–Respondents.
Ferro, Kuba, Mangano, P.C., Hauppauge (Kenneth E. Mangano of counsel), for appellant. Black Marjieh & Sanford LLP, Elmsford (Dana K. Marjieh of counsel), for Morales 167 Hardware Corp. and 1215 Hardware Corp., respondents. Lewis Brisbois Bisgaard & Smith LLP, New York (Meredith Drucker Nolen of counsel), for Hercules Chemical Company, Inc., respondent.
Ferro, Kuba, Mangano, P.C., Hauppauge (Kenneth E. Mangano of counsel), for appellant.
Black Marjieh & Sanford LLP, Elmsford (Dana K. Marjieh of counsel), for Morales 167 th Hardware Corp. and 1215 Hardware Corp., respondents.
Lewis Brisbois Bisgaard & Smith LLP, New York (Meredith Drucker Nolen of counsel), for Hercules Chemical Company, Inc., respondent.
Gische, J.P., Oing, Kennedy, Mendez, Shulman, JJ.
Orders, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered September 23, 2020, which, to the extent appealed from as limited by the briefs, granted defendant Hercules Chemical Company, Inc. (Hercules), and defendants Morales 167th Hardware Corp., doing business as Morales Hardware, and 1215 Hardware Corp.’s (together, Morales Hardware) motions for summary judgment dismissing plaintiff's failure to warn claim as against them, and denied plaintiff's motion for leave to amend his complaint and bill of particulars, unanimously affirmed, without costs.
Plaintiff's failure to warn claims were correctly dismissed, as plaintiff did not raise an issue of fact as to whether any such failure to warn proximately caused his injuries. Plaintiff testified that he did not look at the Clobber bottle before Morales Hardware's employee placed it in a plastic bag when he purchased it, that he did not attempt to read the label at any time prior to the accident, that he was not aware that the label was not in English (or Spanish, which plaintiff speaks and reads) at any time prior to the accident, and that he did not realize that the bottle's label was written in Greek until he gave the bottle to his attorneys after the accident. Under these circumstances, the causal connection between the bottle's label being printed in Greek and plaintiff's accident and injuries is severed (see M.H. v. Bed Bath & Beyond Inc., 156 A.D.3d 33, 38, 64 N.Y.S.3d 205 [1st Dept. 2017] ; Medina v. Biro Mfg. Co., 151 A.D.3d 535, 536, 57 N.Y.S.3d 35 [1st Dept. 2017] ). Because plaintiff's claim is not that the bottle's label was insufficiently conspicuous or prominent, but rather that it was inadequate or insufficient, his reliance on Johnson v. Johnson Chem. Co., 183 A.D.2d 64, 588 N.Y.S.2d 607 [2d Dept. 1992] and German v. Morales, 24 A.D.3d 246, 806 N.Y.S.2d 493 [1st Dept. 2005] is misplaced (see Reis v. Volvo Cars of N. Am., Inc., 73 A.D.3d 420, 423, 901 N.Y.S.2d 10 [1st Dept. 2010] ; Sosna v. American Home Prods., 298 A.D.2d 158, 158, 748 N.Y.S.2d 548 [1st Dept. 2002] ).
Based on the foregoing, the court providently exercised its discretion in denying plaintiff leave to amend his complaint and bill of particulars to assert violations of an Occupational Safety and Health Administration (OSHA) regulation ( 29 CFR 1910.1200 ), the Federal Hazardous Substances Act (FHSA) ( 15 USC § 1261 et seq. ), and its enabling regulation ( 16 CFR 1500.121 ), because the amendments were palpably insufficient and devoid of merit (see generally MBIA Ins. Corp. v Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept. 2010] ). "OSHA safety regulations are promulgated to ensure workplace, not consumer, safety" ( McKinnon v. Skil Corp., 638 F.2d 270, 275 [1st Cir. 1981] ), and therefore "do not even apply to the relationship between [defendants] and [plaintiff], which was that of producer [or seller] and consumer" ( Minichello v. U.S. Indus., Inc., 756 F.2d 26, 29 [6th Cir. 1985] ). FHSA-based improper labeling claims are only viable against a product manufacturer (see Wallace v. Parks Corp., 212 A.D.2d 132, 140, 629 N.Y.S.2d 570 [4th Dept. 1995] ), and therefore would have no viability in this action as against Morales Hardware. Finally, while plaintiff's proposed FHSA-based amendments would be viable as against Hercules, they would still fail for lack of causation.
In the absence of any cross appeal, we decline Morales Hardware's invitation to search the record and award them summary judgment dismissing plaintiff's common-law negligence claim as against them.
We have considered the parties’ remaining arguments and find them unavailing,