Summary
In Rose v Gelco Corporation, 261 AD2d 381, 688 NYS2d 259, the plaintiff employee sustained physical injury during the course of his employment when he tripped and fell over a fire extinguisher installed in a van by defendant company.
Summary of this case from Tacuri v. BegleyOpinion
May 3, 1999
Appeal from the Supreme Court, Rockland County (Weiner, J.).
Ordered that the order is affirmed, with costs.
The plaintiff Robert Rose sustained physical injuries during the course of his employment with Whirlpool Corporation (hereinafter Whirlpool) when he tripped and fell over a fire extinguisher which had been installed in a van by the defendant Allen Group, Inc. (hereinafter Allen). The van had been leased by Whirlpool from the defendants Gelco Corporation, and Gelco Corp./G.E. Capital Fleet Services (hereinafter collectively referred to as Gelco). Since Whirlpool is immune from suit under the Workers' Compensation Law, there can be no liability imputed to Gelco as owner of the van ( see, Heritage v. Van Patten, 59 N.Y.2d 1017; Rauch v. Jones, 4 N.Y.2d 592, 596; Naso v. Lafata, 4 N.Y.2d 585; Christiansen v. Silver Lake Contr. Corp., 188 A.D.2d 507, 508; Jaglall v. Supreme Petroleum Co., 185 A.D.2d 971; Constantine v. Sperry Corp., 149 A.D.2d 394). Furthermore, the plaintiffs have failed to allege any independent negligence on the part of Gelco ( see, Delio v. Percom Equip. Rental Corp., 249 A.D.2d 354; Jaglall v. Supreme Petroleum Co., supra).
The plaintiffs are also not entitled to recovery under a theory of strict products liability or breach of implied warranty as the allegations in support of these causes of action are devoid of a factual basis and are vague and conclusory ( see, Schuckman Realty v. Marine Midland Bank, 244 A.D.2d 400). The factual allegations contained in the complaint are insufficient to support the claim that the van was defectively designed or manufactured ( see, Lama Holding Co. v. Smith Barney, Inc., 88 N.Y.2d 413, 425; Voss v. Black Decker Mfg. Co., 59 N.Y.2d 102, 106-107).
Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.