Rodriguez v. Ford Motor Company

• Decision Date: 21 May 2009
• Docket Number: 622.
• Citation: 879 N.Y.S.2d 129,62 A.D.3d 573,2009 NY Slip Op 04011
• Parties: ALIDA RODRIGUEZ, Appellant, v. FORD MOTOR COMPANY, Respondent, et al, Defendants.
• Court: New York Supreme Court — Appellate Division

62 A.D.3d 573

879 N.Y.S.2d 129

2009 NY Slip Op 04011

ALIDA RODRIGUEZ, Appellant, v. FORD MOTOR COMPANY, Respondent, et al, Defendants.

622.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 21, 2009.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 15, 2007, which denied plaintiff's motion to restore the case to the trial calendar, and granted defendant Ford Motor Company's cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, plaintiff's motion granted and Ford's cross motion denied.

Plaintiff originally based her products liability claim against Ford on a "transient signal" theory postulating that the Ford vehicle that struck her had a design defect by which electromagnetic signals from unknown sources and for unknown reasons caused the vehicle's cruise control to fully open the throttle, in turn causing the vehicle to suddenly accelerate without the driver manipulating the gas pedal, and also causing the steering and brakes to stop functioning. The trial court, after a lengthy Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]), precluded this theory on the ground that it has no support in the scientific community, and also precluded plaintiff's expert. At plaintiff's request, the trial court then removed the case from the trial calendar pending plaintiff's appeal. After the appeal was dismissed (17 AD3d 159 [2005]), plaintiff sought to restore the case to the calendar, asserting that she would proceed against Ford on a negligence theory based on circumstantial evidence. Ford opposed the motion and cross-moved for summary judgment. The court denied plaintiff's motion to restore and granted Ford's cross motion for summary judgment, finding that plaintiff's circumstantial evidence theory "is inextricably intertwined with, and dependent upon, the precluded theory of `transient signals.'"

Preliminarily, the court properly considered Ford's cross motion since good cause existed for Ford's delay in making it (CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]), namely, the eve-of-trial order precluding plaintiff's then sole transient-signal theory of liability, as well as her expert, and the subsequent unsuccessful appeal. Further, the motion practice that resulted in dismissal began with plaintiff seeking to restore the action to the calendar; Ford's motion for summary judgment was, in effect, merely opposition to...