Opinion
CA 03-00478
November 21, 2003.
Appeal from those parts of an order of Supreme Court, Onondaga County (Murphy, J.), entered March 28, 2002, that, inter alia, denied in part the motions of defendant Michelin North America, Inc. for summary judgment seeking dismissal of the complaints against it.
WEBSTER SZANYI LLP, BUFFALO, AND PIPER RUDNICK LLP, PHILADELPHIA, PENNSYLVANIA (MATTHEW A. GOLDBERG, OF THE PENNSYLVANIA BAR, ADMITTED PRO HAC VICE, OF COUNSEL), FOR DEFENDANT-APPELLANT.
CHERUNDOLO, BOTTAR LEONE, P.C., SYRACUSE (JERROLD P. O'BRIEN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS CYNTHIA PAPWORTH, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JOHN T. PAPWORTH, DECEASED, PAIGE PAPWORTH, INDIVIDUALLY, AND TAYLOR PAPWORTH, INDIVIDUALLY.
MEGGESTO, CROSSETT VALERINO, LLP, SYRACUSE (HEATHER R. LA DIEU OF COUNSEL), FOR PLAINTIFF-RESPONDENT UTICA MUTUAL INSURANCE COMPANY, AS SUBROGEE OF CYNTHIA PAPWORTH AND JOHN PAPWORTH, DECEASED.
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, AND GORSKI, 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:
Plaintiffs commenced these actions seeking to recover damages arising out of the death of John T. Papworth (decedent). Decedent was killed in 1998 when the vehicle that he was driving, manufactured by defendant Landrover North America, Inc., spun out of control and rolled over several times, allegedly as a result of a tire blowout. The tire was allegedly manufactured by defendant Michelin North America, Inc. (MNA); however, MNA denies that it manufactured, sold or distributed the tire, and moved for summary judgment seeking dismissal of the complaints against it on that ground. Supreme Court denied the motions in part, and we affirm.
In support of its motions, MNA submitted proof that markings on the blown tire indicate that it was manufactured in England by the Michelin Tyre Company, Ltd. (Michelin Tyre). Both MNA and Michelin Tyre are subsidiaries of Compagnie Gnrale des Etablissements Michelin, of France. However, the assertions of MNA that it had not manufactured, sold or distributed that model tire were made only upon information and belief, and such assertions are insufficient to establish MNA's entitlement to summary judgment ( see Onondaga Soil Testing v. Barton, Brown, Clyde Loguidice, 69 A.D.2d 984). Further, MNA also failed to establish that it had a corporate existence separate from Michelin Tyre when the subject tire was manufactured and sold.