MANGIAFRENO v. Brite Office Cleaning Corp., Third-Party Defendant-Appellant.

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

Laura MANGIAFRENO, et al., Plaintiffs, v. WIKSTROM MACHINES, INC., Defendant-Respondent, Control Data Corporation, Defendant Third-Party Plaintiff-Respondent, Brite Office Cleaning Corp., Third-Party Defendant-Appellant.

Decided: October 27, 1997

Before ROSENBLATT, J.P., and O'BRIEN, THOMPSON, FRIEDMANN and GOLDSTEIN, JJ. James P. O'Connor, Garden City (Alfred P. Lucia, Jr., of counsel), for third-party defendant-appellant. White, Quinlan, Staley & Ledwith, L.L.P., Garden City (Cornelius J. Droogan, of counsel), for defendant third-party plaintiff-respondent.

In a negligence action to recover damages for personal injuries, etc., the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated September 12, 1996, as denied those branches of its motion which were for summary judgment dismissing the cause of action asserted in the third-party complaint for contribution based on negligence in training, equipping, and supervising the injured plaintiff, and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the third-party defendant's motion which were for summary judgment dismissing the cause of action asserted in the third-party complaint for contribution based on negligence in training, equipping, and supervising the injured plaintiff and all cross claims insofar as asserted against it are granted, and the third-party complaint is dismissed in its entirety.

The injured plaintiff allegedly suffered injuries as an employee of the appellant when the cleaning cart she was pushing rolled down a decline in the floor, causing her to lose her balance and fall.   This activity is “so ordinary and within the ken of the average person, that there is no duty to provide instruction, warnings and/or assistance in how to perform it” (Stroschine v. Prudential-Bache Sec., 207 A.D.2d 828, 829, 616 N.Y.S.2d 545;  see, Lattanzi v. International Bus. Mach. Corp., 237 A.D.2d 259, 655 N.Y.S.2d 398;  Camarda v. Summit Homes, 233 A.D.2d 285, 649 N.Y.S.2d 463;  June v. Sedco Sys., 203 A.D.2d 423, 610 N.Y.S.2d 570).   Accordingly, the court should have dismissed the third-party complaint and all cross claims insofar as asserted against the appellant.

MEMORANDUM BY THE COURT.

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