Vicki Stewart, Individually and as Parent and Natural Guardian of Jason Markovitz, an Infant, Appellant, v. Domenico Zirilli, Defendant, and Mohawk Containers, Inc., Now Known as Jefferson Smurfit, Inc., Respondent

Vicki Stewart, Individually and as Parent and Natural Guardian of Jason Markovitz, an Infant, Appellant, v Domenico Zirilli, Defendant, and Mohawk Containers, Inc., Now Known as Jefferson Smurfit, Inc., Respondent. [619 NYS2d 1009] [MAJORITY] —Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendant Mohawk Containers, Inc., now known as Jefferson Smurfit, Inc., for summary judgment dismissing the complaint against it. The issue of duty is one of law for the courts (De Angelis v Lutheran Med. Ctr., 58 NY2d 1053, 1055). Under the circumstances of this case, we conclude that the movant owed no duty to the child (see, Pulka v Edelman, 40 NY2d 781; see also, Matthews v Scotia-Glenville School Sys., 94 AD2d 912, lv denied 60 NY2d 559; cf., Gayden v City of Rochester, 148 AD2d 975). (Appeal from Order of Supreme Court, Erie County, Joslin, J.—Summary Judgment.) Present —Green, J. P., Pine, Wesley, Callahan and Davis, JJ.