Morales v. City of N.Y.

• Decision Date: 21 April 2021
• Docket Number: 2017-05323,Index No. 26575/05
• Citation: 193 A.D.3d 923,147 N.Y.S.3d 592
• Parties: Robert MORALES, respondent-appellant, v. CITY OF NEW YORK, et al., respondents, NASCO, appellant-Respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 923
147 N.Y.S.3d 592

Robert MORALES, respondent-appellant,
v.
CITY OF NEW YORK, et al., respondents,

NASCO, appellant-Respondent, et al., defendants.

2017-05323
Index No. 26575/05

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 22, 2021
April 21, 2021

147 N.Y.S.3d 594

James J. Toomey, New York, N.Y. (Evy Kazansky of counsel), for appellant—respondent.

Weitz & Luxenberg, P.C., New York, N.Y. (Gennaro Savastano and Nicholas Wise of counsel), for respondent-appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Kathy Park and Julie Steiner of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant NASCO appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Kings County (Lara J. Genovesi, J.), dated March 15, 2017. The order, insofar as appealed from, granted that branch of the motion of the defendants City of New York and New York City Police Department which was for summary judgment dismissing the cross claims of the defendant NASCO insofar as asserted against them, denied, in part, that branch of the cross motion of the defendant NASCO which was for summary judgment dismissing so much of the second cause of action as alleged negligence and strict products liability based upon a failure to warn insofar as asserted against it, and denied that branch of the cross motion of the defendant NASCO which was for summary judgment dismissing so much of the second and the fourth causes of action as alleged strict products liability based upon a design defect insofar as asserted against it. The order, insofar as cross-appealed from, granted that branch of the motion of the defendants City of New York and New York City Police Department which was for summary judgment dismissing so much of the first cause of action as alleged violations of General Municipal Law § 205–e.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendants City of New York and New York City Police Department which were for summary judgment dismissing so much of the first cause of action as alleged a violation of General Municipal Law § 205–e predicated upon Labor Law § 27–a, and the cross claims of the defendant NASCO insofar as asserted against them, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the plaintiff payable by the defendant NASCO and the defendants City of New York and New York City Police Department appearing separately and filing separate briefs.

The plaintiff, a detective employed by the defendant New York City Police Department (hereinafter the NYPD) in its

147 N.Y.S.3d 595

Emergency Services Unit, severely injured his eye while attempting to change the carbon dioxide cartridge of an animal tranquilizer gun. The plaintiff commenced this action to recover damages for personal injuries against, among others, the City of New York and the NYPD (hereinafter together the City defendants), alleging, inter alia, violations of General Municipal Law § 205–e, and against NASCO, the distributor of the gun, alleging negligence and strict products liability predicated upon defective design and failure to provide adequate warnings. Following discovery, the City defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and NASCO cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

In an order dated March 15, 2017, the Supreme Court, inter alia, granted those branches of the City defendants' motion which were for summary judgment dismissing so much of the first cause of action as alleged violations of General Municipal Law § 205–e, and NASCO's cross claims insofar as asserted against them. The court denied those branches of NASCO's cross motion which were for summary judgment dismissing so much of the second and fourth causes of action as alleged negligence and strict products liability based upon a design defect insofar as asserted against it, and so much of the second cause of action as was predicated on the failure to warn that protective eye gear should be worn when changing the carbon dioxide cartridge of the tranquilizer gun and that removing an end cap while the tranquilizer gun is under pressure could result in the end cap or the carbon dioxide cartridge becoming dangerous airborne projectiles insofar as asserted against it. NASCO appeals, and the plaintiff cross-appeals.

With respect to the appeal, a party injured as a result of a defective product may seek damages against the product manufacturer or others in the chain of distribution if the defect was a substantial factor in causing the injury (see Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 41, 760 N.Y.S.2d 79, 790 N.E.2d 252 ; Rabon–Willimack v. Robert Mondavi Corp., 73 A.D.3d 1007, 1008, 905 N.Y.S.2d 190 ). " ‘A product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product’ " ( Speller v. Sears, Roebuck & Co., 100 N.Y.2d at 41, 760...