Hernandez v. Biro Mfg. Co.
| Decision Date | 08 June 1998 |
| Citation | 674 N.Y.S.2d 72,251 A.D.2d 375 |
| Parties | , Prod.Liab.Rep. (CCH) P 15,284, 1998 N.Y. Slip Op. 5756 Cesar Rivera HERNANDEZ, Appellant-Respondent, v. BIRO MANUFACTURING COMPANY, et al., Respondents, Pork King Sausage, Inc., Respondent-Appellant, et al., Defendants (And a Third-Party Action). |
| Court | New York Supreme Court — Appellate Division |
Parker & Waichman (DiJoseph, Portegello & Schuster, P.C., New York City [Arnold E. DiJoseph III], of counsel), for appellant-respondent.
Ann K. Kandel, Hauppauge (Kathleen D. Foley, of counsel), for respondent-appellant.
Ayers & Thompson, New York City (Frank V. Pesce, of counsel), and McGuire, Woods, Battle & Boothe, L.L.P., Richmond, VA (Kenneth J. Moran, of counsel), for respondent Biro Manufacturing Company (one brief filed).
Lester, Schwab, Katz & Dwyer, New York City (Steven P. Prystowsky and Mark Brisman, of counsel), for respondent Will-Burt Co.
Tutoki & Levy, New York City (J. Patrick DeLince, of counsel), for respondent Polo Linen Supply Co.
Before BRACKEN, J.P., and JOY, ALTMAN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (I.Aronin, J.), dated May 22, 1997, as (1) granted the respective motion and cross motion of the defendants Will-Burt Co. and Biro Manufacturing Company for summary judgment dismissing the complaint and any and all counterclaims cross claims insofar as asserted against them, and (2) granted that branch of the cross motion of the defendant Pork King Sausage, Inc., which was for summary judgment dismissing the plaintiff's cause of action based on strict products liability insofar as asserted against it, and the defendant Pork King Sausage, Inc., cross-appeals, as limited by its brief, from so much of the same order as, in effect, denied that branch of its cross motion which was for summary judgment dismissing the plaintiff's cause of action to recover damages for negligence insofar as asserted against it. The plaintiff also appeals from an order of the same court dated September 4, 1997, which granted the motion of the defendant Polo Linen Supply Co. which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the defendants Will-Burt Co., Biro Manufacturing Company, Port King Sausage, Inc., and Polo Linen Supply Co. are awarded one bill of costs.
The plaintiff was employed by the defendant New York Gyro, Inc. His right hand was amputated when he was loading a meat grinder and the sleeve of his uniform became caught in the grinder as he was trying to free a piece of frozen meat by inserting his hand into the grinder. It is undisputed that the safety features had been removed from the grinder prior to the plaintiff's operation of the machine on the day of the incident. It is also undisputed that at the time the grinder left the possession and control of the manufacturer, the defendant Biro Manufacturing Company (hereinafter Biro), and the assembler, the defendant Will-Burt Co. (hereinafter Will-Burt), its safety features were intact. It is also undisputed that even if the interlock cover had been removed, the machine would not operate unless the interlock device had been intentionally removed and the electrical circuitry rewired.
The affidavit by the plaintiff's expert does not raise any material issue of fact that the moving defendants were responsible for a design defect or substantial modification of the grinder. The conclusions drawn by the plaintiff's expert are not supported by any facts or data, and as...
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...252 F.3d 131, 137 (2d Cir.2001); see also Liriano v. Hobart Corp., 170 F.3d 264, 268 (2d Cir. 1999); Hernandez v. Biro Mfg. Co., 251 A.D.2d 375, 377, 674 N.Y.S.2d 72 (2d Dep't 1998). Instead a manufacturer has a duty to warn "against latent dangers resulting from foreseeable uses of its pro......
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Liriano v. Hobart Corp., Docket Nos. 96-9641
..."[t]he hazards of inserting one's hand into an open meat grinder while the machine is operating are patent." Hernandez v. Biro Mfg. Co., 674 N.Y.S.2d 72, 74 (2d Dep't 1998). That statement, however, was dicta. Moreover, it was dicta in a case whose primary holding has been squarely overrule......
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...July 18, 2013) (defendant, a casual seller, "owed no such duty to plaintiff" who was buyer's employee); Hernandez v. Biro Mfg. Co., 251 A.D.2d 375, 377, 674 N.Y.S.2d 72 (2d Dep't 1998) ("Since [causal seller] Pork King did not sell the meat grinder to the plaintiff, it owed no duty to the p......
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