Lobello v Bfi Waste Sys. of N. Am., Inc.

Lobello v BFI Waste Sys. of N. Am., Inc. 2006 NY Slip Op 09759 [35 AD3d 1177] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Kathleen Lobello et al., Appellants,
v
BFI Waste Systems of North America, Inc., Respondent.

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Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered March 8, 2006 in a personal injury action. The order granted defendant's motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries they sustained during the course of their employment while they were loading trash into a dumpster supplied to their employer by defendant. Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. With respect to the negligence causes of action, defendant established that it owed no duty of care to plaintiffs as a matter of law (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138-140 [2002]; see also Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585-587 [1994]; Estate of Morgan v Whitestown Am. Legion Post No. 1113, 309 AD2d 1222 [2003]). Defendant also established its entitlement to summary judgment dismissing the strict products liability and breach of warranty causes of action, and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendant established as a matter of law that the dumpster was not defective (see Cleary v Reliance Fuel Oil Assoc., Inc., 17 AD3d 503, 506 [2005], affd 5 NY3d 859 [2005]; see generally Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479-480 [1980]); that there was no duty to warn of the risks inherent in lifting heavy loads of trash into the dumpster (see Liriano v Hobart Corp., 92 NY2d 232, 241-242 [1998]; Gian v Cincinnati Inc., 17 AD3d 1014, 1016 [2005]); and that the dumpster was fit for the ordinary purposes for which it was used (see Butler v Interlake Corp., 244 AD2d 913, 915 [1997]; see generally Denny v Ford Motor Co., 87 NY2d 248, 258-259 [1995], rearg denied 87 NY2d 969 [1996]). Present—Hurlbutt, J.P., Smith, Centra and Pine, JJ.