Cynthia Papworth v Landrover North America

Papworth v Landrover N. Am. 2003 NY Slip Op 18568 [1 AD3d 898] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

Cynthia Papworth, Individually and as Administrator of the Estate of John T. Papworth, Deceased, et al., Respondents,
v
Landrover North America, Inc., Defendant, and Michelin North America, Inc., Appellant. (Action No. 1.) Cynthia Papworth, Individually and as Administrator of the Estate of John T. Papworth, Deceased, et al., Plaintiffs, v Midas International, Inc., by and through its Agents, Officers and/or Employees, et al., Defendants. (Action No. 2.) Utica Mutual Insurance Company, as Subrogee of Cynthia Papworth et al., Respondent, v Landrover North America, Inc., et al., Defendants, and Michelin North America, Inc., Appellant. (Action No. 3.)

— 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.

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 Générale 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 AD2d 984 [1979]). Further, MNA also failed to establish that it had a corporate existence separate from Michelin Tyre when the subject tire was manufactured and sold. Present—Pigott, Jr., P.J., Wisner, Hurlbutt and Gorski, JJ.