Opinion
July 16, 1993
Appeal from the Supreme Court, Genesee County, Wolf, Jr., J.
Present — Callahan, J.P., Green, Balio, Fallon and Doerr, JJ.
Order unanimously reversed on the law without costs, motions granted and complaint dismissed. Memorandum: Plaintiff sustained serious injuries when his arm was drawn into the rotating power takeoff driveline between a tractor and a wagon. One of the safety shields that covers the driveline had been removed by plaintiff's employer. Plaintiff commenced an action seeking damages for the personal injuries he sustained against Deere Company, the manufacturer, and Goodridge Farm Supply, Inc., the supplier. Defendants moved for summary judgment, contending that the removal of the safety guard was a material alteration of the product and was the proximate cause of plaintiff's injuries. Supreme Court denied defendants' motions. We reverse.
The manufacturer and supplier of a product are not liable for injuries proximately caused by a material alteration of the product that destroys the functional utility of a key safety feature (see, Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 532; Robinson v. Reed-Prentice Div., 49 N.Y.2d 471, 479; Frey v Rockford Safety Equip. Co., 154 A.D.2d 899; Miller v. Anetsberger Bros., 124 A.D.2d 1057; Magee v. Bliss Co., 120 A.D.2d 926, 927). In support of their motions for summary judgment, defendants submitted the affidavit of an engineer, who averred that the removal of the safety shield was the proximate cause of plaintiff's injuries because, had the shield been in place, plaintiff's hand would not have come into contact with the rotating driveline. Significantly, plaintiff's expert did not state that plaintiff's accident would have occurred even if the missing safety shield had been in place (see, Van Buskirk v Migliorelli, 185 A.D.2d 587, 589, lv denied 80 N.Y.2d 761; see also, Wood v. Peabody Intl. Corp., 187 A.D.2d 824). Plaintiff's expert's assertion that the tractor was defective because it was not equipped with a kill switch located near the power takeoff was conclusory and insufficient to defeat summary judgment (see, Amatulli v. Delhi Constr. Corp., supra, at 533; Van Buskirk v Migliorelli, supra). Moreover, although plaintiff's expert averred that kill switches were state-of-the-art at and before the time of plaintiff's accident in 1986, he did not state that kill switches were state-of-the-art in 1967 when this tractor was manufactured. Finally, plaintiff presented no evidence to support an inference that the product was purposefully manufactured to permit its use without the safety guards (cf., Lopez v. Precision Papers, 67 N.Y.2d 871; Aviles v. Eagle Picher Corp., 167 A.D.2d 495, 497). Defendants' evidence demonstrated that the safety guards were affixed to the product, the wagon was imprinted with a warning against operating the machinery without all of the safety shields in place, and the operator's manual contained a similar warning. Plaintiff's breach of warranty causes of action are time-barred (see, Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407; Csoka v. Bliss, 168 A.D.2d 664, 665). Consequently, defendants were entitled to summary judgment dismissing plaintiff's complaint.