Opinion
Submitted April 19, 1999
June 1, 1999
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated August 18, 1998, which granted the motion of the defendant Windmere Corporation for summary judgment dismissing the complaint insofar as asserted against it.
Larkin, Axelrod, Trachte Tetenbaum, LLP, Newburgh, N Y (James Alexander Burke of counsel), for appellant.
Michael J. Grenthal, Tallman, N.Y. (Steve S. Efron of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the defendant Windmere Corporation (hereinafter Contrary to the plaintiffs contention, the defendant Windmere Corporation Windmere) made a prima facie showing of its entitlement to judgment as a matter of law ( see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851) by submitting, inter alia, excerpts of the plaintiff's deposition testimony, the affidavit and report of Windmere's engineering expert, and the report of the plaintiff's engineering expert. This evidence was neither conclusory nor unsubstantiated, and the plaintiff failed to meet his burden of raising a triable issue of fact in response thereto ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557). Hence, the record amply supports the conclusion that the plaintiff's misuse of the product at issue was the sole proximate cause of his injury ( see, Sabbatino v. Rosin Sons Hardware Paint, 253 A.D.2d 471), and the Supreme Court properly granted Windmere's motion for summary judgment.
The plaintiff failed to preserve for appellate review his contention that there are triable issues of fact with regard to the alleged existence of a design defect in the product at issue since he did not oppose Windmere's motion for summary judgment on that ground ( see, Coney Is. Exhaust v. Adriana Realty Corp., 236 A.D.2d 506; Aguirre v. City of New York, 214 A.D.2d 692; Mount Vernon Fire Ins. Co. v. William Georgia Corp., 194 A.D.2d 366; Orellano v. Samples Tire Equip. Supply Corp., 110 A.D.2d 757). In any event, the record fails to support this assertion.