WISLOH v. Ogden Services Corporation, Third-Party Defendant-Respondent.

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

John WISLOH, et al., Plaintiffs, v. AIR-A-PLANE CORPORATION, Defendant Third-Party Plaintiff-Appellant; Ogden Services Corporation, Third-Party Defendant-Respondent.

Decided: June 29, 1998

Before ROSENBLATT, J.P., and MILLER, RITTER and SULLIVAN, JJ. Ahmuty, Demers & McManus, Albertson (Alio, Ronan, Ritzert, McDonnell & Kehoe [James S. Kehoe], of counsel), for appellant. Kwiatkowski & Ryan, Floral Park (John E. Ryan and John M. Donnelly, of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 8, 1996, which granted the third-party defendant's motion for summary judgment (1) dismissing the third-party complaint, and (2) on its counterclaim for the costs, expenses, and attorney's fees of the litigation.

ORDERED that the order is affirmed, with costs.

The plaintiff John Wisloh was injured when he was struck on the head by a door, which he had opened, to the panel of an aircraft heating unit that he was in the process of operating.   The aircraft heating unit was designed, manufactured, and distributed by the appellant.   At the time of the injury, the plaintiff was employed by the third-party defendant, Ogden Services Corporation (hereinafter Ogden).

While the appellant argues that there are questions of fact as to whether Ogden provided training and instruction to Wisloh, his injuries resulted from his opening a door-a common activity for which an employer has no duty to train an employee (see, Dupper v. Conrail, 120 A.D.2d 638, 640-641, 501 N.Y.S.2d 910;  see also, Tjepkema v. Rochdale Meat Mkt., 238 A.D.2d 333, 656 N.Y.S.2d 303).   Moreover, in a companion appeal, we have dismissed the plaintiffs' claim against the appellant (see, Wisloh v. Air-A-Plane Corp., 251 A.D.2d 658, 676 N.Y.S.2d 484 [decided herewith] ).   The appellant's remaining contention is without merit.   Accordingly, Ogden is entitled to summary judgment.


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