Powles v. Wean United Corp.

• Decision Date: 20 January 1987
• Citation: 511 N.Y.S.2d 61,126 A.D.2d 624
• Parties: , Prod.Liab.Rep. (CCH) P 11,513 Garrett POWLES, Respondent-Appellant, v. WEAN UNITED CORP., etc., Respondent, New England Engineering Inc., Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 61

511 N.Y.S.2d 61

126 A.D.2d 624, Prod.Liab.Rep. (CCH) P 11,513

Garrett POWLES, Respondent-Appellant, v. WEAN UNITED CORP., etc., Respondent New England Engineering Inc., Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

Jan. 20, 1987.

Pollner, Mezan, Stolzberg & Frechtman, P.C., New York City (Sydney J. Schwartz, of counsel), for appellant-respondent.

Levine & Grossman, Mineola (Michael B. Grossman, of counsel), for respondent-appellant.

Bower & Gardner, New York City (Steven J. Ahmuty, Jr., of counsel), for respondent.

Before THOMPSON, J.P., and WEINSTEIN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant New England Engineering, Inc., appeals from so much of an order of the Supreme Court, Queens County (Durante, J.), dated April 4, 1985, as denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals from so much of the order as granted the motion of the defendant Wean United Corp. (hereinafter Wean) for summary judgment dismissing the complaint against it.

ORDERED that the order is affirmed, with one bill of costs payable to the plaintiff and Wean.

The plaintiff injured his hand by getting it caught between two moving rollers of a calender press machine while he was cleaning the rollers. A safety cord, which, when pulled, would have stopped the rollers, had been disconnected. He sued the defendants, asserting claims to recover damages for negligence, breach of warranty, and strict products liability. Both the defendants moved for summary judgment.

The defendant New England Engineering Inc. (hereinafter New England) had repaired the machine for a period ending seven days before the occurrence, and such repair involved the removal of the safety cord in question. Denial of the defendant New England's motion was proper since triable issues of fact exist as to whether an employee of New England left the safety cord unconnected and, if so, whether the failure to reattach the safety cord contributed to the plaintiff's injuries (see, Sillman v. Twentienth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387; Sles v. Heidelberg Eastern, 78 A.D.2d 521, 431 N.Y.S.2d 142; Howell v. Bennett Buick, 52 A.D.2d 590, 382 N.Y.S.2d 590).

Wean manufactured the machine in 1947 with the safety cord annexed. The granting of Wean's motion for summary judgment was proper since it established that: (1) the machine was not being used in the manner it was intended to be used (i.e., with the safety cord attached), and (2) there was a subsequent modification of the machine (i.e., removal of the safety cord) by another party (either a coworker of the plaintiff's or an employee of the defendant New England) which substantially altered it and which was a proximate cause of this occurrence (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; Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622). Having thus made a prima facie showing that it was not liable to the plaintiff (Vermette v. Kenworth Truck Co., 68 N.Y.2d 714, 506 N.Y.S.2d 313, 497 N.E.2d 680), the plaintiff was then required to submit evidentiary facts, by expert affidavit, rebutting the prima facie showing and demonstrating the existence of a triable issue of fact in regard to his claim that the machine had been negligently or defectively manufactured or designed (see, Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Bingham v. Godfrey, 114 A.D.2d 987, 988, 495 N.Y.S.2d 428).

The plaintiff, however, failed to present any evidentiary proof in support of his contention...