| Fitzgerald v Federal Signal Corp. |
| 2009 NY Slip Op 05288 [63 AD3d 994] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Gerard Fitzgerald et al., Appellants, v Federal SignalCorporation, Respondent, et al., Defendants. |
—[*1] Flemming Zulack Williamson Zauderer, LLP, New York, N.Y. (Lissa C. Gipson of counsel),and Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo and Ronald T. Coleman, Jr., pro hacvice, of counsel), for respondent (one brief filed).
In an action, inter alia, to recover damages for personal injuries based on strict productsliability, the plaintiffs appeal, as limited by their brief, (1) from so much of an order of theSupreme Court, Kings County (Saitta, J.), dated January 4, 2008, as granted that branch of themotion of the defendant Federal Signal Corporation, pursuant to CPLR 3211 (a) (7), which wasto dismiss the causes of action alleging failure to warn insofar as asserted against it, and (2) fromso much of an order of the same court dated September 24, 2008, as denied that branch of theirmotion which was for leave to renew and as upon, in effect, granting reargument, adhered to theoriginal determination.
Ordered that the appeal from the order dated January 4, 2008, is dismissed, as that order wassuperseded by so much of the order dated September 24, 2008, as was made upon reargument;and it is further,
Ordered that the order dated September 24, 2008, is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the defendant Federal Signal Corporation.
The plaintiffs are four firefighters who allege that they sustained permanent hearing damagewhile employed by the Fire Department of the City of New York (hereafter FDNY) as a result ofrepeated exposure to sirens manufactured by the defendant Federal Signal Corporation (hereafterFederal) and installed on FDNY fire trucks. The plaintiffs seek compensation based on Federal'salleged failure to warn them of the risk of hearing loss from prolonged exposure to the sirens.Insofar as is relevant to these appeals, Federal moved, pursuant to CPLR 3211 (a) (7), to dismissthe failure-to-warn claims insofar as asserted against it, contending, inter alia, that it owed noduty to warn as the risk of hearing loss was open and obvious. The Supreme Court granted the[*2]motion, and we affirm.
"Upon a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), thecourt must determine whether from the four corners of the pleading 'factual allegations arediscerned which taken together manifest any cause of action cognizable at law' " (Salvatore vKumar, 45 AD3d 560, 562-563 [2007], quoting Morad v Morad, 27 AD3d 626, 627[2006]; see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder &Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994])."In determining such a motion, the court may freely consider additional facts contained inaffidavits submitted by the plaintiff to remedy any defects in the complaint" (Sheridan vCarter, 48 AD3d 444, 445 [2008]; see International Oil Field Supply Servs. Corp. vFadeyi, 35 AD3d 372, 375 [2006]).
Viewing the allegations in the complaint as true, and according the plaintiffs the benefit ofevery reasonable inference, the Supreme Court properly determined that the plaintiffs failed tostate a cause of action to recover damages for strict products liability based on Federal's allegedduty and failure to warn them, as the risk alleged is "open and obvious" and "readily apparent asa matter of common sense" (Liriano v Hobart Corp., 92 NY2d 232, 241-242 [1998];see Warlikowski v Burger King Corp., 9 AD3d 360, 362 [2004]; Schiller v NationalPresto Indus., 225 AD2d 1053, 1054 [1996]). "There is no duty to warn of an open andobvious danger of which the product user is actually aware or should be aware as a result ofordinary observation or as a matter of common sense" (O'Boy v Motor Coach Indus., Inc.,39 AD3d 512, 514 [2007]; see Jones v W + M Automation, Inc., 31 AD3d 1099,1101-1102 [2006]; Vail v KMart Corp., 25 AD3d 549, 551 [2006]). Therefore, theSupreme Court properly granted Federal's motion to dismiss those causes of action and, uponreargument, properly adhered to that determination (see Gentilella v Board of Educ. ofWantagh Union Free School Dist., 60 AD3d 629 [2009]; Haggerty v Quast, 48AD3d 629, 631 [2008]). Mastro, J.P., Dillon, Santucci and Balkin, JJ., concur.