KULOVANY v. CERCO PRODUCTS INC

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Supreme Court, Appellate Division, First Department, New York.

Robert E. KULOVANY, et al., Plaintiffs-Appellants, v. CERCO PRODUCTS, INC., et al., Defendants-Respondents.

Cerco Products, Inc., Third-Party Plaintiff, v. R & R Mechanical, Inc., Third-Party Defendant-Respondent.

Decided: February 14, 2006

TOM, J.P., MAZZARELLI, SAXE, NARDELLI, McGUIRE, JJ. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants. DeCicco, Gibbons & McNamara, P.C., New York (Michael J. Sweeney of counsel), for Cerco Products, Inc., respondent. Strongin, Rothman & Abrams, LLP, New York (Annette G. Hasapidis of counsel), for Meadowlands Fire Protection Corp., St. Barnabas Hospital and Jobco Incorporated, respondents. Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for R & R Mechanical, Inc., respondent.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered October 6, 2004, which, to the extent appealed from as limited by the briefs, granted defendants' motions for summary judgment dismissing the complaint, and denied plaintiffs' motion for partial summary judgment on their claim pursuant to Labor Law § 240(1), unanimously affirmed, without costs.

 The negligence claim against defendant Cerco, the lessor of the trailer, was properly dismissed, there being no showing that defendant/third-party plaintiff Cerco had constructive notice of the ostensibly visible defect in the floor of the construction trailer (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ), particularly where the trailer had been for 20 months in the possession of plaintiff's employer, which had the contractual duty to inspect it for defects.   With regard to the Labor Law § 240(1) claim, the accident (one of the injured plaintiff's legs fell through the floor of the trailer, up to his knee) cannot be considered to have resulted from an elevation-related risk (see Toefer v. Long Is. R.R., 4 N.Y.3d 399, 795 N.Y.S.2d 511, 828 N.E.2d 614 [2005] ).