Opinion
2002-00865
Argued January 31, 2003.
March 3, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Lally, J.), dated December 4, 2001, which granted the respective motions of the defendant Ford Motor Company and the defendant Malvese Tractor Implement Co., Inc., for summary judgment dismissing the complaint insofar as asserted against them.
Levine Grossman, Mineola, N.Y. (Scott D. Rubin of counsel), for appellants.
Herzfeld Rubin, P.C., New York, N.Y. (Herbert Rubin, David B. Hamm, and Linda M. Brown of counsel), for respondent Ford Motor Company.
Vaslas Lepowsky Hauss Danke, LLP, Staten Island, N.Y. (Karen Hauss of counsel), for respondent Malvese Tractor Implement Co., Inc.
Before: GABRIEL M. KRAUSMAN, J.P., ROBERT W. SCHMIDT, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs.
The injured plaintiff was hurt when a portion of a drive shaft from the post-hole digger alongside of which he was standing flew out from the machinery and struck his arm. The injured plaintiff, and his wife, derivatively, commenced this action against Ford Motor Company (hereinafter Ford) and Malvese Tractor Implement Co., Inc. (hereinafter Malvese), the respective manufacturer and the supplier of the machinery. The defendants separately moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motions and the plaintiffs appeal. We affirm.
Ford and Malvese each made a prima facie showing of entitlement to summary judgment dismissing the complaint by demonstrating that the machinery was substantially modified after it left their control (see Fraser v. Stihl Inc., 286 A.D.2d 661, 662; Scardefield v. Telsmith Inc., 267 A.D.2d 560, 561-562; Ryan v. Arrow Leasing Corp., 260 A.D.2d 565; Mackney v. Ford Motor Co., 251 A.D.2d 298; see also Liriano v. Hobart Corp., 92 N.Y.2d 232, 238; Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 475). In opposition, the plaintiffs failed to raise a triable issue of fact (see e.g. Zuckerman v. City of New York, 49 N.Y.2d 557).
The plaintiffs' remaining contentions are without merit.
KRAUSMAN, J.P., SCHMIDT, CRANE and RIVERA, JJ., concur.