From Casetext: Smarter Legal Research

Wilhouski v. Canon

Appellate Division of the Supreme Court of New York, Second Department
Feb 6, 1995
212 A.D.2d 525 (N.Y. App. Div. 1995)

Summary

dismissing section 200 premises liability claim because danger was “open and obvious”

Summary of this case from In re World Trade Ctr. Lower Manhattan Disaster Site Litig.

Opinion

February 6, 1995

Appeal from the Supreme Court, Nassau County (Kutner, J.).


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; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509; Smerka v. Niagara Mohawk Power Corp., 206 A.D.2d 891; Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657; Maracle v. DiFranco, 197 A.D.2d 877; Carringi v International Paper Co., 184 A.D.2d 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 N.Y.2d 494; D'Avila v. City of New York, 205 A.D.2d 729; DeMattia v Van Westerhaut Mola Social Sport Club, 204 A.D.2d 594; Sisu v Wolinetz, 200 A.D.2d 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 N.Y.2d 104; Ackermann v. Town of Fishkill, 201 A.D.2d 441; Stephens v. Tucker, 184 A.D.2d 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. Van Westerhaut Mola Social Sport Club, supra; Italiano v. Jeffrey Garden Apts., 3 A.D.2d 677, affd 3 N.Y.2d 977). Ritter, J.P., Copertino, Joy and Hart, JJ., concur.


Summaries of

Wilhouski v. Canon

Appellate Division of the Supreme Court of New York, Second Department
Feb 6, 1995
212 A.D.2d 525 (N.Y. App. Div. 1995)

dismissing section 200 premises liability claim because danger was “open and obvious”

Summary of this case from In re World Trade Ctr. Lower Manhattan Disaster Site Litig.
Case details for

Wilhouski v. Canon

Case Details

Full title:STANLEY WILHOUSKI, Appellant, v. CANON U.S.A. et al., Respondents. (And…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 6, 1995

Citations

212 A.D.2d 525 (N.Y. App. Div. 1995)
622 N.Y.S.2d 319

Citing Cases

Tulovic v. Chase Manhattan Bank

Inc.. 268 AD2d 516;Panetta v Paramount Communications. 255 AD2d 568, lv denied 93 NY2d 806;Bellofatto v…

Rypkema v. Time Manufacturing Company

Manufacturers have no duties to warn of open and obvious dangers. Bazerman v. Gardall Safe Corp., 203 A.D.2d…