TRONCOSO v. (and a third-party action).

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

Roberto TRONCOSO, et al., appellants, v. HOME DEPOT, U.S.A., INC., respondent, et al., defendant (and a third-party action).

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DANIEL W. JOY, GABRIEL M. KRAUSMAN and DANIEL F. LUCIANO, JJ. Weisman & Weisman (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellants. Simmons, Jannace & Stagg, L.L.P., East Meadow, N.Y. (Steven D. Jannace, Debra L. Wabnik, and David Berman of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Schmidt, J.), dated September 5, 1997, which granted the motion of the defendant Home Depot, U.S.A., Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The injured plaintiff Roberto Troncoso (hereinafter the plaintiff) seeks to recover damages for injuries he sustained when a saw blade came into contact with his hand while he was cutting wood flooring.   The plaintiff alleges that in selling him a saw blade which could be attached to his power grinder by removing the safety guard, which its employee had shown him how to remove, the defendant Home Depot, U.S.A., Inc. (hereinafter Home Depot), implicitly endorsed his misuse of the grinder as a saw and was liable for negligent entrustment.   The Supreme Court granted motion by Home Depot for summary judgment dismissing the complaint insofar as asserted against it, and we affirm.

 To establish a cause of action under a theory of negligent entrustment, a plaintiff must prove “some special knowledge concerning a characteristic or condition peculiar to the plaintiff which renders the plaintiff's use of the chattel unreasonably dangerous * * * or some special knowledge as to a characteristic or defect peculiar to the chattel which renders it unreasonably dangerous” (Zara v. Perzan, 185 A.D.2d 236, 237, 586 N.Y.S.2d 139).

 Here, the plaintiff, a building superintendent familiar with the use of power tools and with several years experience in their operation, admitted that he had gone to the Home Depot store for the express purpose of buying a blade to use on his grinder.   The plaintiff's argument that Home Depot, which allegedly held itself out as an expert in the field of power tools, should have refused to sell him the blade because it knew he intended to misuse his grinder as a saw, must fail, given his knowledge and experience in using power tools, and his admission that the use of any blade on a machine not designed to be used as a saw and containing no safety guard could result in injury.

 The failure to warn would not constitute the proximate cause of the plaintiff's injuries, which were the result of his decision to use his grinder as a saw (see, Lonigro v. TDC Elecs., 215 A.D.2d 534, 627 N.Y.S.2d 695;  Petrie v. B.F. Goodrich Co., 175 A.D.2d 669, 572 N.Y.S.2d 595;  LaPaglia v. Sears Roebuck & Co., 143 A.D.2d 173, 531 N.Y.S.2d 623;  Heller v. Encore of Hicksville, 76 A.D.2d 917, 429 N.Y.S.2d 258).   Accordingly, the court properly granted Home Depot's motion for summary judgment dismissing the complaint insofar as asserted against it.


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