ROSE v. GELCO CORPORATION (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Weiner, J.), dated July 1, 1998, which granted the motion of the defendants Gelco Corporation and Gelco Corp./G.E. Capital Fleet Services pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it for failure to state a cause of action.

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, 466 N.Y.S.2d 958, 453 N.E.2d 1247;  Rauch v. Jones, 4 N.Y.2d 592, 596, 176 N.Y.S.2d 628, 152 N.E.2d 63;  Naso v. Lafata, 4 N.Y.2d 585, 176 N.Y.S.2d 622, 152 N.E.2d 59;  Christiansen v. Silver Lake Contr. Corp., 188 A.D.2d 507, 508, 591 N.Y.S.2d 189;  Jaglall v. Supreme Petroleum Co., 185 A.D.2d 971, 587 N.Y.S.2d 413;  Constantine v. Sperry Corp., 149 A.D.2d 394, 539 N.Y.S.2d 499).   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, 671 N.Y.S.2d 109;  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, 664 N.Y.S.2d 73).   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, 88 N.Y.2d 413, 425, 646 N.Y.S.2d 76, 668 N.E.2d 1370;  Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106-107, 463 N.Y.S.2d 398, 450 N.E.2d 204).

MEMORANDUM BY THE COURT.