Summary
holding that the removal of a safety guard that "was designed to be removed from the [printing] press with relative ease to facilitate periodic press maintenance" did not constitute material alteration and that triable issue of fact existed as to whether such a printing press was reasonably safe for its intended use
Summary of this case from Cacciola v. Selco Balers, Inc.Opinion
January 13, 2000
Order, Supreme Court, New York County (Emily Goodman, J.), entered August 11, 1998, which, to the extent appealed and cross-appealed from, granted defendant's motion for summary judgment to the extent of dismissing plaintiff's fourth cause of action for failure to warn but denied the motion insofar as it was addressed to plaintiff's remaining products liability causes of action, unanimously affirmed, without costs.
Michael B. Doyle for Plaintiff-Respondent-Appellant.
Jeffrey P. Resnick for Defendants-Appellants-Respondents.
ROSENBERGER, J.P., MAZZARELLI, WALLACH, SAXE, JJ.
While operating a printing press manufactured and sold by defendants, one of plaintiff's fingers became lodged in the press and was severed. At the time of the accident, the press was being operated without the safety guard with which it had been equipped by the manufacturer. Although defendants maintain that the removal of the safety guard constituted a material alteration of the press subsequent to its manufacture and sale cutting off their liability for the alleged product defect (see, Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 480), the evidence on the motion established that the safety guard was designed to be removed from the press with relative ease to facilitate periodic press maintenance. The motion court correctly held that the removal of a safety guard designed to be readily removed did not constitute a material alteration. Also correct was the court's finding that the affidavit of plaintiff's expert raised triable issues as to whether a press such as the one at issue, designed so as to be operable without a safety guard, was reasonably safe for its intended uses when placed in the stream of commerce (see,Lopez v. Precision Papers, Inc., 107 A.D.2d 667, 669, affd 67 N.Y.2d 871). Plaintiff's cause of action predicated on defendants' failure adequately to warn of the danger of operating the press without a safety guard was properly dismissed since the evidence showed that there were two prominently placed warnings of that danger on the press.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.