AYOUCH v. DUNKIRK REALTY LIMITED (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated April 27, 2022.  The order, insofar as appealed from, granted those branches of the separate motions of the defendant Dunkirk Realty Limited and the defendant Gershow Recycling Corporation which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The plaintiff owned a company that disposed of metal items.  On May 22, 2015, the plaintiff allegedly sustained certain injuries when he attempted to open a metal safe by cutting tape wrapped around the safe's door.  On this day, the plaintiff went to a warehouse owned by the defendant Dunkirk Realty Limited (hereinafter Dunkirk) in order to remove metal items that were inside the warehouse.  At his deposition, the plaintiff testified that while he was at Dunkirk's warehouse, one of Dunkirk's employees asked him to remove the safe.  The plaintiff testified that after he agreed to remove the safe, one of Dunkirk's employees loaded the safe into the plaintiff's truck.  One of the plaintiff's associates testified at his deposition that he placed tape around the door to the safe before the safe was loaded into the plaintiff's truck.  The plaintiff and his associates brought the safe to a recycling yard owned by the defendant Gershow Recycling Corporation (hereinafter Gershow) in order to scrap the safe.  The plaintiff testified that while he and his associates were at Gershow's recycling yard, an employee of Gershow told them that they had to open the safe before Gershow would accept it.  Thereafter, while the safe was still located in the plaintiff's truck, the plaintiff attempted to open the safe's door by cutting the tape wrapped around the door with a box cutter that belonged to one of his associates.  The plaintiff testified that his left thumb was injured when the safe's door opened and hit his hand as he was cutting the tape.

Thereafter, the plaintiff commenced this personal injury action against the defendants.  The defendants separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them.  By order dated April 27, 2022, the Supreme Court, among other things, granted those branches of the separate motions.  The plaintiff appeals.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them by presenting evidence that the plaintiff's alleged injuries resulted solely from the manner in which the plaintiff chose to open the safe and that the defendants did not exercise any control or supervision over the plaintiff (see Wagner v. Wody, 98 A.D.3d 965, 966, 951 N.Y.S.2d 59;  Stamatatos v. Stamatatos, 95 A.D.3d 1297, 1297, 944 N.Y.S.2d 890;  Abbadessa v. Ulrik Holding, 244 A.D.2d 517, 518, 664 N.Y.S.2d 620).  Moreover, even if one of Dunkirk's employees directed the plaintiff to remove the safe from Dunkirk's warehouse, Dunkirk also established, prima facie, that it did not have a duty to warn the plaintiff (see Ochoa–Hoenes v. Finkelstein, 172 A.D.3d 1080, 1081, 101 N.Y.S.3d 81;  Sepulveda–Vega v. Suffolk Bancorp., 119 A.D.3d 850, 850, 989 N.Y.S.2d 371;  Wagner v. Wody, 98 A.D.3d at 966, 951 N.Y.S.2d 59).

In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted those branches of the defendants’ separate motions which were for summary judgment dismissing the complaint insofar as asserted against each of them.

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

IANNACCI, J.P., CHAMBERS, WOOTEN and WAN, JJ., concur.