Opinion
Decided February 13, 1997
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered April 9, 1996, which (1) reversed, on the law, an order of the Supreme Court (Alan J. Saks, J.), entered in Bronx County, granting a motion by defendant and third-party plaintiff Rando Machine Corp. for summary judgment dismissing the complaint, (2) denied the motion, and (3) reinstated the complaint. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?"
Defendant Rando Machine Corp. manufactured a fiber processing machine known as an "even feed". Plaintiff, an employee of the third-party defendant American White Cross Laboratories, was injured while attempting to clear cotton, which had jammed in the machine, with a pipe. Although plaintiff had turned the machine off before attempting to clear the cotton, apparently someone had inadvertently turned it on again. The IAS Court granted defendant summary judgment after finding that there was a substantial modification of the machine in the removal of a plexiglass shield which was the proximate cause of plaintiff's injuries.
The Appellate Division while noting that the duty of a manufacturer is not an open-ended one, but extends to the design and manufacture of a product safe at the time of sale, and that material alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature, however foreseeable that modification may have been, are not within the ambit of a manufacturer's responsibility, concluded that there was evidence that defendant purposefully manufactured the "even feed machine" to permit its use without the safety plexiglass guard, that it was not permanently affixed to the machine but simply attached by two clips, that defendant's president testified that the recommended method to clean the machine included removal of the safety guard, and that, accordingly, an issue of fact was raised as to whether the machine was reasonably safe without the removable guard.
Fiedelman Hoefling, Jericho (William D. Buckley of counsel), for Rando Machine Corp., defendant and third-party plaintiff-appellant.
Quirk Bakalor, P.C., New York City (Richard H. Bakalor of counsel), for American White Cross Laboratories, third-party defendant-appellant.
Rosenberg, Minc Armstrong, New York City (Steven C. Falkoff of counsel), for respondent.
Tuesca v Rando Mach. Corp., 226 A.D.2d 157, affirmed.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, and certified question answered in the affirmative, for the reasons stated in the memorandum at the Appellate Division ( 226 A.D.2d 157).
Concur: Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY.