occasions a safety bulletin was sent to St. Joe Container Company emphasizing the importance that the machine was never to be operated while its parts were in motion and that the interlock switch should not be tampered with for user safety. The same bulletins emphasized the importance of instructing users concerning safety practices, and further offering special warning signs free of charge. Safety Bulletin No. 4 and No. 8 stated "The major warning throughout this communication is to never run a printer/slotter or die cutter in the open position. The proper and safe operating procedure for clean-up and set-up operation is to always stop and lockout the machine prior to unlocking and opening any section of it." (Exhibits A and B to Wenglowskjy Affirmation) (emphasis in original).
It is also clear that the Koppers printer/slotter was not "purposefully manufactured to permit its use without the safety guard." Darsan v. Guncalito Corp., 153 A.D.2d 868, 545 N.Y.S.2d 594 (1989). Plaintiffs' complaint may not create an issue of fact simply on the basis of the alleged inadequacy of the warnings in the Koppers printer/slotter in order to survive this motion. Koppers had a duty to warn of the dangers associated with the reasonably foreseeable misuse of its product. Id. As discussed above, Koppers warned against using the machine while in motion by placing a sign on the entranceway to the machine and by sending safety bulletins to St. Joe Container Company.
The record clearly shows that the Koppers printer/slotter machine involved in the accident which caused Kromer's injuries was modified while at St. Joe Container by tying up the safety interlock switch and rendering the automatic shut-off mechanism inoperable. I find that this alteration was the proximate cause of Kromer's injuries. A manufacturer who sells equipment with a safety device that could have prevented the accident is not liable when the employer "consciously bypasses built-in safety features." 49 N.Y.2d at 480. Based on the undisputed record, therefore, there are no triable issues of fact requiring jury determination and defendant United Container is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
For the reasons set forth above, defendant United Container's motion for summary judgment is granted and since plaintiff cannot recover against his employer, the third-party complaint is dismissed as well. Since plaintiff Valerie Kromer's claims are derivative of her husband's tort claims, those claims must also be dismissed. Haspil v. Church of St. Cyril, 128 Misc. 2d 968, 971, 491 N.Y.S.2d 914 (1985). Accordingly, the plaintiff's complaint is dismissed.
ALL OF THE ABOVE IS SO ORDERED.
MICHAEL A. TELESCA
United States District Judge
DATED: Rochester, New York
June 15, 1993