Summary
holding that "defendants failed to meet their initial burden of proving that a safer design was not feasible and that there was adequate testing and inspection"
Summary of this case from Badalamenti v. City of N.Y.Opinion
April 28, 1995
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Pine, J.P., Wesley, Doerr, Davis and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting summary judgment dismissing the first and third causes of action, alleging negligence and strict products liability, against defendants and all related cross claims insofar as the causes of action and cross claims allege defective design, failure to test and inspect, and failure to warn. With respect to strict products liability, defendants failed to meet their initial burden of proving that a safer design was not feasible and that there was adequate testing and inspection (see, Voss v Black Decker Mfg. Co., 59 N.Y.2d 102, 108-109). The affidavits of the expert of defendants Honda Motor Company, Ltd., and American Honda Motor Company (Honda) were conclusory and factually unsupported on those issues. With respect to negligence, defendants failed to meet their initial burdens of proving the reasonableness of their own conduct on those issues (see, Voss v Black Decker Mfg. Co., supra, at 106). The statement of Honda's expert that Honda's conduct comported with industry standards does not establish as a matter of law that Honda was not negligent (see, Trimarco v Klein, 56 N.Y.2d 98, 106-107; see also, Feiner v Calvin Klein, Ltd., 157 A.D.2d 501, 502).
Defendants premised their argument that there was no violation of a duty to warn on the assumption that there was no design defect about which to warn. Because we reinstate the allegations that there was a design defect, we also reinstate the allegations that defendants failed to warn of the defect.
The court properly granted summary judgment dismissing the first and third causes of action insofar as they allege that the seat belt system was defective. In opposition to Honda's motion, plaintiff argued only that there is an issue of fact whether he was wearing a seat belt at the time of the accident. We conclude that plaintiff failed to raise an issue of fact by submission of his own deposition testimony wherein he stated that he could not recall whether he was wearing a seat belt, and similar testimony of a paramedic. Plaintiff argues that the police report submitted by Honda in support of its motion is not admissible evidence; that argument is raised for the first time on appeal, and we do not consider it (see, Arvantides v Arvantides, 106 A.D.2d 853, 854, mod on other grounds 64 N.Y.2d 1033). We further conclude that the court properly dismissed the breach of warranty cause of action as time barred (see, Heller v U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 412). Plaintiff argues that dismissal of that cause of action is premature because defendants are in exclusive possession of facts pertaining to possible warranties of future performance. Plaintiff has failed to show "beyond speculation or surmise" that discovery would give rise to identifiable issues of fact (Smith v Fishkill Health-Related Ctr., 169 A.D.2d 309, 316, lv denied 78 N.Y.2d 864; see, Fried v Seippel, 80 N.Y.2d 32, 41-42, n 5; Waterman v Yamaha Motor Corp., 184 A.D.2d 1029, 1030).
We note that, by granting summary judgment dismissing the complaint, the trial court thereby concluded that further discovery was unnecessary. In view of our determination reinstating portions of the first and third causes of action, the parties may seek further consideration of the issue of discovery before the trial court.
We modify the orders on appeal, therefore, by reinstating the first and third causes of action against defendants and all related cross claims insofar as the causes of action and cross claims allege defective design, failure to test and inspect, and failure to warn.