CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (THOMAS J. SPEYER OF COUNSEL), FOR DEFENDANTS–APPELLANTS KILL BROTHERS COMPANY, ALSO KNOWN AS KILLBROS. AND UNVERFERTH MANUFACTURING COMPANY, INC.

GOLDBERG SEGALLA LLP, ROCHESTER (RAUL E. MARTINEZ OF COUNSEL), FOR DEFENDANT–APPELLANT BENTLEY BROS., INC.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motions are granted, the complaint against defendants Kill Brothers Company, also known as Killbros., and Unverferth Manufacturing Company, Inc., is dismissed, and the fourth cause of action against defendant Bentley Bros., Inc. is dismissed.

Memorandum: While Diana Beechler (plaintiff) was working inside of a piece of farm equipment known as a grain cart, she lost her footing and her right leg became caught in a rotating auger. Thereafter, plaintiffs commenced this action against defendant Kill Brothers Company, also known as Killbros., and defendant Unverferth Manufacturing Company, Inc. (collectively, the Killbros defendants), and defendant Bentley Bros., Inc. (Bentley), seeking to recover damages for injuries that plaintiff sustained in the accident. In the complaint, plaintiffs asserted, inter alia, causes of action against the Killbros defendants based upon strict products liability and negligent design and manufacture, and a cause of action against Bentley based upon strict products liability. The Killbros defendants moved for summary judgment dismissing the complaint against them, and Bentley moved for partial summary judgment dismissing the strict products liability cause of action against it. We agree with defendants that Supreme Court erred in denying those motions. We therefore reverse the order, grant the motions, dismiss the complaint against the Killbros defendants, and dismiss the strict products liability cause of action against Bentley.

In the respective motions, defendants established their entitlement to summary judgment dismissing the strict products liability causes of action insofar as they are predicated on a manufacturing defect theory "by presenting competent evidence that [the] product was not defective" ( Ramos v. Howard Indus., Inc. , 10 N.Y.3d 218, 221, 855 N.Y.S.2d 412, 885 N.E.2d 176 [2008] ; see Cassatt v. Zimmer, Inc. , 161 A.D.3d 1549, 1550, 75 N.Y.S.3d 764 [4th Dept. 2018] ), that is, that the product performed as intended and was not defective when it left the manufacturer's control (see Wesp v. Carl Zeiss, Inc. , 11 A.D.3d 965, 968, 783 N.Y.S.2d 439 [4th Dept. 2004] ). In support of their motions, defendants submitted the testimony of the Killbros defendants' production manager and foreman, who described the process of assembling a grain cart, during which a steel safety guard was welded over the exposed portion of auger on every grain cart. The deposition testimony further established that the guard was present on this particular unit at the time it left the manufacturer's control. Furthermore, the Killbros defendants submitted the affidavit of an expert, which was incorporated by reference into Bentley's moving papers, who opined that plaintiff's injuries would not have occurred if the steel safety guard had not been removed. Even assuming, arguendo, that the evidence submitted by plaintiffs in opposition to the motion demonstrated that the condition of the steps inside the grain cart constituted a manufacturing defect, we conclude that such evidence failed to raise an issue of fact inasmuch as defendants established that the absence of the guard, not the condition of the steps, was the proximate cause of plaintiff's injuries (cf. Rutherford v. Signode Corp. , 11 A.D.3d 922, 922–923, 783 N.Y.S.2d 735 [4th Dept. 2004], lv denied 4 N.Y.3d 702, 790 N.Y.S.2d 649, 824 N.E.2d 50 [2005] ).

Defendants established their entitlement to summary judgment dismissing the strict products liability causes of action insofar as they are predicated on a design defect theory by submitting evidence that the product was reasonably safe (see Voss v. Black & Decker Mfg. Co. , 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 450 N.E.2d 204 [1983] ; see generally Denny v. Ford Motor Co. , 87 N.Y.2d 248, 256–257, 639 N.Y.S.2d 250, 662 N.E.2d 730 [1995], rearg. denied 87 N.Y.2d 969, 642 N.Y.S.2d 198, 664 N.E.2d 1261 [1996] ). The Killbros defendants' expert averred that the steel safety guard was manufactured in accordance with industry standards, was designed to last the life of the product, and was "state of the art" inasmuch as it was permanently welded to the interior of the grain cart and could not be removed except by using an acetylene torch or other such heavy-duty tool (see Reeps v. BMW of N. Am., LLC , 94 A.D.3d 475, 475–476, 941 N.Y.S.2d 597 [1st Dept. 2012] ; Guzzi v. City of New York , 84 A.D.3d 871, 873, 923 N.Y.S.2d 170 [2d Dept. 2011] ; Wesp , 11 A.D.3d at 967, 783 N.Y.S.2d 439 ). Plaintiffs failed to raise an issue of fact whether the grain cart, "as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner" ( Voss , 59 N.Y.2d at 108, 463 N.Y.S.2d 398, 450 N.E.2d 204 ; see Stalker v. Goodyear Tire & Rubber Co. , 60 A.D.3d 1173, 1175, 874 N.Y.S.2d 632 [3d Dept. 2009] ). Although plaintiffs' expert averred that certain features of the grain cart violated industry standards, we conclude that none of the standards upon which he relied are applicable here.Likewise, we conclude that the Killbros defendants are entitled to summary judgment dismissing the cause of action against them alleging negligent design and manufacture. "[I]nasmuch as there is almost no difference between a prima facie case in negligence and one in strict liability," we conclude that plaintiffs similarly failed to raise an issue of fact with respect to their cause of action for negligent design and manufacture ( Preston v. Peter Luger Enters., Inc. , 51 A.D.3d 1322, 1325, 858 N.Y.S.2d 828 [3d Dept. 2008] ; see generally Hokenson v. Sears, Roebuck & Co. , 159 A.D.3d 1501, 1502, 72 N.Y.S.3d 697 [4th Dept. 2018] ).

Finally, we note that, in plaintiffs' responses to the Killbros defendants' interrogatories, plaintiffs asserted additional theories of liability. One was that the Killbros defendants were negligent in failing to warn plaintiff about a dangerous condition. The other was based on a breach of implied warranty, which was presumably restricted to the strict products liability cause of action asserted in the complaint. Plaintiffs did not oppose defendants' motions with respect to either of those theories in the motion court or in their appellate brief. We thus deem plaintiffs to have abandoned those theories, and any causes of action based upon them must therefore be dismissed (see Mortka v. K–Mart Corp. , 222 A.D.2d 804, 804, 635 N.Y.S.2d 105 [3d Dept. 1995] ).