Opinion
CA 03-01521.
Decided March 19, 2004.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered September 30, 2002. The order granted defendant's motion for a directed verdict and dismissed the complaint in a products liability action.
PHILLIP A. THIELMAN, BUFFALO, FOR PLAINTIFF-APPELLANT.
GIBSON, MC ASKILL CROSBY, BUFFALO (BRIAN P. CROSBY OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly granted defendant's motion for a directed verdict in this products liability action premised upon the second collision doctrine ( see generally Garcia v. Rivera, 160 A.D.2d 274, 276-277, lv denied 77 N.Y.2d 801; Burgos v. Lutz, 128 A.D.2d 496, 497). Plaintiff's expert testified that the 1991 Mustang manufactured by defendant, in which plaintiff was a rear seat passenger when she was injured, was defectively designed because the rear bumper lacked sufficient stiffness and the spare tire was dangerously positioned. Plaintiff, however, failed to present proof "that there was a feasible alternative design which would have avoided the harm to the extent [that her] injuries were enhanced by the second collision" ( Burgos, 128 A.D.2d at 497). Because plaintiff failed to present a prima facie case, the court properly granted defendant's motion ( see id. at 498). Plaintiff failed to preserve for our review her contention that the court erred in directing a bifurcated trial ( see Darwak v. Benedictine Hosp., 247 A.D.2d 771, 772, appeal dismissed 92 N.Y.2d 845; Meyers v. Fifth Ave. Bldg. Assoc., 90 A.D.2d 824, 825).