| Faery v City of Lockport |
| 2010 NY Slip Op 01161 [70 AD3d 1375] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Leland J. Faery, Respondent, v City of Lockport,Appellant. |
—[*1] Jeffrey Freedman Attorneys at Law, Buffalo (Edward J. Murphy, III, of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.),entered July 6, 2009 in a personal injury action. The order, insofar as appealed from, denied inpart defendant's motion for summary judgment.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted in its entirety and the complaint is dismissed.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained at a wastewater treatment plant when, during thecourse of his work as a laborer, he placed his arm and hand into the engine compartment of askid steer. Defendant was the owner of the treatment plant and, at the time of the accident,plaintiff was employed by a construction company with whom defendant had contracted toremove a portion of the roof at the plant. We conclude that Supreme Court erred in denying thatpart of defendant's motion for summary judgment dismissing the common-law negligence claim,and thus should have granted the motion in its entirety, thereby dismissing the complaint. "Afinding of negligence may be based only upon the breach of a duty. If, in connection with theacts complained of, the defendant owes no duty to the plaintiff, the action must fail" (Darby vCompagnie Natl. Air France, 96 NY2d 343, 347 [2001]) and, here, defendant established asa matter of law that it owed no duty to plaintiff (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Contrary to plaintiff's contention, there is " 'no duty towarn against a condition that can be readily observed by a reasonable use of one's senses' "(Bombard v Central Hudson Gas & Elec. Co., 205 AD2d 1018, 1020 [1994], lvdismissed 84 NY2d 923 [1994]; see Breem v Long Is. Light. Co., 256 AD2d 294[1998], lv denied 93 NY2d 802 [1999]). In any event, plaintiff, " 'based on his training[and] prior practice, . . . knew or should have known' " of the harm that could becaused by placing his arm and hand into the engine compartment of a skid steer (Ganger v Anthony Cimato/ACPPartnership, 53 AD3d 1051, 1053 [2008]). Present—Scudder, P.J., Smith, Faheyand Lindley, JJ.