Opinion
CA 02-01195
November 15, 2002.
Appeals from an order of Supreme Court, Erie County (Joslin, J.), entered December 21, 2001, which denied the motions of defendants-appellants seeking summary judgment dismissing the complaint against them.
CHELUS, HERDZIK, SPEYER, MONTE PAJAK, P.C., BUFFALO (MICHAEL F. CHELUS OF COUNSEL), FOR DEFENDANT-APPELLANT LEHIGH CONSTRUCTION GROUP, INC.
COLUCCI GALLAHER, P.C., BUFFALO (RYAN GELLMAN OF COUNSEL), FOR DEFENDANT-APPELLANT CARRIER VIBRATING EQUIPMENT, INC.
HURWITZ FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR DEFENDANT-APPELLANT DAVIS-ULMER SPRINKLER COMPANY, INC.
VOLGENAU BOSSE, LLP, BUFFALO (PAULA M. EADE NEWCOMB OF COUNSEL), FOR DEFENDANT-APPELLANT CHARLES DINGMAN, DOING BUSINESS AS HEALTH ENVIRONMENT SAFETY TECHNOLOGIES.
PHILLIPS, LYTLE, HITCHCOCK, BLAINE HUBER LLP, BUFFALO (KEVIN J. ENGLISH OF COUNSEL), FOR DEFENDANT-APPELLANT SIMPLEX TIME RECORDER CO.
LUSTIG BROWN, LLP, BUFFALO (TROY S. FLASCHER OF COUNSEL), FOR DEFENDANTS-APPELLANTS MARSH McLENNAN, INC. AND JOHNSON HIGGINS OF ILLINOIS, INC.
GIBSON, McASKILL CROSBY, LLP, BUFFALO (PAULETTE E. ROSS OF COUNSEL), FOR DEFENDANT-APPELLANT CUNNINGHAM CO.
LAW OFFICES OF LOUIS H. SIEGEL, BUFFALO (LOUIS H. SIEGEL OF COUNSEL), FOR DEFENDANT-APPELLANT ICS/EXECUTONE TELECOM, INC.
THE COSGROVE LAW FIRM, BUFFALO (J. MICHAEL LENNON OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., HAYES, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motions are granted and the complaint against defendants-appellants is dismissed.
Memorandum:
Plaintiffs commenced this negligence and strict products liability action seeking damages for injuries sustained by Raymond Jackson (plaintiff) when a fire broke out in the ammonium persulfate warehouse next to the boiler room at the chemical plant where he was working. Upon our review of the record, we conclude that Supreme Court erred in denying the motions of defendants-appellants seeking summary judgment dismissing the complaint against them. Defendants-appellants met their initial burden of establishing their entitlement to judgment as a matter of law by establishing that they owed no duty to plaintiff with respect to the work they had contracted to perform for plaintiff's employer at its chemical plant ( see generally Espinal v. Mellville Snow Contrs., 98 N.Y.2d 136, 138-141; Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584-587), and plaintiffs failed to raise an issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).