Opinion
2016–04868 Index No. 150656/12
04-10-2019
Eucebio Dionisio HERNANDEZ, Respondent-Appellant, v. Vittorio ASOLI, et al., Respondents, Skyfood Equipment, LLC, Appellant-Respondent, et al., Defendant.
Molod Spitz & Desantis, P.C. (Kinney Lisovicz Reilly & Wolff, P.C., New York, N.Y. [Mark S. Hanna ], of counsel), for appellant-respondent. Kerry E. Connolly, New York, NY, for respondent-appellant. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless of counsel), for respondents.
Molod Spitz & Desantis, P.C. (Kinney Lisovicz Reilly & Wolff, P.C., New York, N.Y. [Mark S. Hanna ], of counsel), for appellant-respondent.
Kerry E. Connolly, New York, NY, for respondent-appellant.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless of counsel), for respondents.
WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the defendant Skyfood Equipment, LLC, appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Richmond County (Philip G. Minardo, J.), dated March 28, 2016. The order, insofar as appealed from, denied that branch of the motion of the defendant Skyfood Equipment, LLC, which was for summary judgment dismissing the causes of action alleging strict products liability and negligent design insofar as asserted against it, and, in effect, upon searching the record, awarded summary judgment to the defendant Trattoria Romana, Inc., dismissing the cross claims of the defendant Skyfood Equipment, LLC, for common-law indemnification and contribution insofar as asserted against the defendant Trattoria Romana, Inc. The order, insofar as cross-appealed from, granted those branches of the separate motions of the defendants Skyfood Equipment, LLC, and E & A Supply, Inc., which were for summary judgment dismissing the causes of action alleging failure to warn insofar as asserted against each of them.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Skyfood Equipment, LLC, which was for summary judgment dismissing the causes of action alleging strict products liability and negligent design insofar as asserted against it, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendant Skyfood Equipment, LLC, payable by the plaintiff, and one bill of costs to the defendants Vittorio Asoli and Trattoria Romana Inc., payable by the defendant Skyfood Equipment, LLC.
The plaintiff worked in food preparation for the defendant Trattoria Romana, Inc. (hereinafter the restaurant), which was owned by the defendant Vittorio Asoli. At the direction of Asoli, the plaintiff was grating cheese at the restaurant with a commercial cheese grater that was attached to and powered by a meat grinder. With the intention of dislodging a piece of cheese from the cheese grater, the plaintiff placed his hand into the hopper of the cheese grater without turning off the meat grinder. The plaintiff's fingers came in contact with the spinning blade of the grinder, causing him to sustain the loss of several fingers. The plaintiff commenced this action against the restaurant and Asoli, as well as the defendant Skyfood Equipment, LLC (hereafter Skyfood), which imported and distributed the meat grinder, and the defendant E & A Supply, Inc. (hereinafter E & A), which ultimately sold the meat grinder to the restaurant. The plaintiff alleged causes of action against Skyfood and E & A sounding in strict products liability, negligent design, and failure to warn. Skyfood asserted cross claims sounding in common-law indemnification and contribution against, among others, the restaurant. The Supreme Court granted those branches of the separate motions of Skyfood and E & A which were for summary judgment dismissing the causes of action sounding in failure to warn insofar as asserted against each of them, denied those branches of those defendants' separate motions which were for summary judgment dismissing the causes of action alleging strict products liability and negligent design, and, in effect, upon searching the record, awarded summary judgment to the restaurant dismissing Skyfood's cross claims against it for common-law indemnification and contribution. Skyfood appeals, and the plaintiff cross-appeals.
The Supreme Court should have granted that branch of Skyfood's motion which was for summary judgment dismissing the causes of action alleging strict products liability and negligent design insofar as asserted against it. Skyfood established its prima facie entitlement to judgment as a matter of law dismissing those causes of action by submitting, inter alia, the deposition transcripts of the plaintiff and the affidavit of an expert, which showed that the plaintiff's own conduct of knowingly placing his hand into the hopper of the operating cheese grater without turning it off was the sole proximate cause of his injuries (see Yun Tung Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29, 34, 926 N.Y.S.2d 377, 950 N.E.2d 113 ; Conte v. Orion Bus Indus., Inc., 162 A.D.3d 638, 640, 78 N.Y.S.3d 236 ; Gorbatov v. Mafter Group, 136 A.D.3d 745, 746, 26 N.Y.S.3d 92 ; Isselbacher v. Larry Lopez Truck Equip. Mfg. Co., 66 A.D.3d 840, 841, 887 N.Y.S.2d 232 ; Donuk v. Sears, Roebuck & Co., 52 A.D.3d 456, 456–457, 859 N.Y.S.2d 701 ; Sorrentino v. Paganica, 18 A.D.3d 858, 859, 796 N.Y.S.2d 667 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
We agree with the Supreme Court's determination granting those branches of the separate motions of Skyfood and E & A which were for summary judgment dismissing the causes of action alleging failure to warn insofar as asserted against each of them. Skyfood and E & A made a prima facie showing of entitlement to judgment as a matter of law dismissing those causes of action insofar as asserted against them by establishing, as a matter of law, that they had no duty to warn the plaintiff of the open and obvious danger of knowingly placing his hand into a cheese grater in close proximity to its spinning blade (see Liriano v. Hobart Corp., 92 N.Y.2d 232, 241, 677 N.Y.S.2d 764, 700 N.E.2d 303 ; Smith v. Stark, 67 N.Y.2d 693, 694, 499 N.Y.S.2d 922, 490 N.E.2d 841 ; Shamir v. Extrema Mach. Co., Inc., 125 A.D.3d 636, 637, 3 N.Y.S.3d 389 ; Fisher v. Flanigan, 89 A.D.3d 1398, 1399–1400, 932 N.Y.S.2d 272 ; Sugrim v. Ryobi Tech., Inc., 73 A.D.3d 904, 905, 901 N.Y.S.2d 327 ; Donuk v. Sears, Roebuck & Co., 52 A.D.3d at 457, 859 N.Y.S.2d 701 ; Rodriguez v. Sears, Roebuck & Co., 22 A.D.3d 823, 824, 803 N.Y.S.2d 184 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).In view of the foregoing determination that Skyfood is entitled to summary judgment dismissing the causes of action alleging strict products liability, negligent design, and failure to warn insofar as asserted against it, the parties' contentions regarding the dismissal of Skyfood's cross claims against the restaurant for common-law indemnification and contribution have been rendered academic, as the basis for those cross claims no longer exists (see generally Shants, Inc. v. Capital One, N.A., 124 A.D.3d 755, 760, 3 N.Y.S.3d 38 ; Parabit Realty, LLC v. Town of Hempstead, 113 A.D.3d 661, 662, 978 N.Y.S.2d 352 ; Smith v. South Bay Home Assn., Inc., 102 A.D.3d 668, 669–670, 957 N.Y.S.2d 728 ).
MASTRO, J.P., DUFFY, LASALLE and IANNACCI, JJ., concur.