Darsan v. Guncalito
| Decision Date | 18 September 1989 |
| Citation | 153 A.D.2d 868,545 N.Y.S.2d 594 |
| Parties | , Prod.Liab.Rep. (CCH) P 12,447 Clifton DARSAN, et al., Plaintiffs-Appellants, v. GUNCALITO CORP., et al., Defendants, Globe Slicing Machine Co., Inc., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Rivkin, Radler, Dunne & Bayh, Uniondale (Frank L. Amoroso, David P. Franks and Michael S. Cohen, of counsel), for defendants-appellants.
Leonard L. Finz, P.C., New York City (Ira Bezack, of counsel), for plaintiffs-appellants.
William T. Ryan, P.C., Mineola (Scott L. Gumpert, of counsel), for defendant-appellant Globe Monte Metropolitan, Inc.
Before MOLLEN, P.J., and THOMPSON, LAWRENCE and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., (1) the defendant Globe Slicing Machine Company, Inc. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Dowd, J.), entered November 20, 1987, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it, and (2) the plaintiffs appeal from so much of the same order as granted the motion of the defendant Associated Food Stores, Inc. for summary judgment dismissing the complaint insofar as it is asserted against it.
ORDERED that the order is modified, on the law, by (1) deleting the provision thereof which denied that branch of the motion of the defendant Globe Slicing Machine Company, Inc., which was for partial summary judgment dismissing those portions of the complaint alleging its defective design of the product, and substituting therefor a provision granting that branch of the motion, and (2) upon searching the record, deleting the provision thereof which denied that branch of the motion of the defendant Globe Monte Metropolitan, Inc., which was for partial summary judgment dismissing those portions of the complaint alleging defective design of the product, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and it is further,
ORDERED that the appeal by the plaintiffs is dismissed as abandoned, without costs or disbursements.
The infant plaintiff suffered the amputation of his right hand, wrist and forearm while operating a meat grinder manufactured by the defendant Globe Slicing Machine Co., Inc. (hereinafter Globe Slicing) and distributed by defendant Globe Monte Metropolitan, Inc. (hereinafter Globe Monte) in the course of his employment as a meat wrapper with the defendant Guncalito Corporation (hereinafter Guncalito). Although the subject machine was equipped at the time of purchase with a safety guard over the feed pan which led to the grinding mechanism, a Guncalito employee thereafter removed the safety guard for easier accessibility to the grinding mechanism.
The plaintiffs alleged that the subject machine was dangerous and defective inasmuch as it was not equipped with "proper and adequate guards", and "proper safety guards, warnings and instructions". Globe Slicing moved for summary judgment, asserting that it could not be held liable for injury resulting from a substantial modification effected by a third party which rendered its product defective (see, Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 426 N.Y.S.2d 717, 403 N.E.2d 440). Globe Monte thereafter cross-moved for summary judgment dismissing the complaint insofar as asserted against it. In opposition, the plaintiffs asserted that since the subject instrumentality was designed so as to permit its use without the safety guard, a question of fact existed as to whether the manufacturer breached its duty by placing on the market a product which had a defect that causes injury. The Supreme Court concluded that since the grinder was "marketed with an attached but removable guard", the subsequent modification defense could not be invoked as a matter of law. We take a contrary view on this point.
It is well settled that a manufacturer of a product may not be held liable either on a negligence or strict products liability cause of action where "[m]aterial alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by...
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