Birriel v F.L. Smithe Mach. Co., Inc.

Birriel v F.L. Smithe Mach. Co., Inc. 2012 NY Slip Op 06742 Decided on October 9, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 9, 2012
Tom, J.P., Mazzarelli, Catterson, Renwick, DeGrasse, JJ.
8226 23328/02

[*1]Juanita Birriel, Plaintiff-Appellant,

v

F.L. Smithe Machine Co., Inc., Defendant/Third-Party Plaintiff-Respondent. New York Envelope Corporation, Third-Party Defendant-Respondent.




Philip Newman, P.C., Bronx (Paul Bibuld of counsel), for
appellant.
Melli, Guerin, Wall & Frankland, P.C., New York (Michelle
Wall of counsel), for F.L. Smithe Machine Co., Inc., respondent.
Haworth Coleman & Gerstman, LLC, New York (Scott
Haworth of counsel), for New York Envelope Corporation,
respondent.

Order, Supreme Court, Bronx County (Patricia Ann Williams, J.), entered November 18, 2009, which granted the motion and cross motion of defendant F.L. Smithe Machine Co., Inc. and third-party defendant New York Envelope Corporation for reargument of the order (same court and Justice), entered July 11, 2008, granting their motions for summary judgment dismissing plaintiff's strict liability claim only, and, upon reargument, granted the motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action alleging strict products liability, negligent design, and breach of the implied warranty, plaintiff, an employee of third-party defendant New York Envelope, was injured while operating an envelope-making machine manufactured by defendant F.L. Smithe Machine Co. that was substantially materially altered post manufacture (see Birriel v F.L. Smithe Mach. Co., Inc., 23 AD3d 205 [1st Dept 2005]). Smithe met its burden of establishing that the machine was originally safe as manufactured, with an appropriate and difficult-to-remove safety feature installed, and that it neither performed nor authorized the alteration of the machine's safety mechanism (see Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 480-481 [1980]; Barnes v Pine Tree Mach., 261 AD2d 295 [1st Dept 1999]).

In opposition, plaintiff failed to raise an issue of fact. Plaintiff's speculation that Smithe either performed or was aware of the alteration is unsupported by the record and insufficient to defeat summary judgment. [*2]

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 9, 2012

CLERK