Bueno v Chase Manhattan Bank

[*1] Bueno v Chase Manhattan Bank 2009 NY Slip Op 50611(U) [23 Misc 3d 1106(A)] Decided on April 9, 2009 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2009
Supreme Court, Kings County

Wilson Bueno, Plaintiff,

against

Chase Manhattan Bank, CHASE MANHATTAN BANK, N.A., HI-RISE RECYCLING SYSTEM CORPORATION AND IDC SYSTEMS, INTERNATIONAL DYNETICS CORPORATION OF TORONITA CORPORATION, TORONITA CORPORATION and PRECISION MACHINERY SYSTEMS, Defendants. HI-RISE RECYCLING SYSTEM CORPORATION AND IDC SYSTEMS, Third Party Plaintiff, ARAMARK SERVICES, INC., Third Party Defendant,



50108/00



Appearances of Counsel

Dinkes & Schwitzer, P.C. (William A. Prinsell, Esq. of counsel), for Plaintiff.

Robbin, Harris, King & Fodera (Brian Liferiedge, Esq. of counsel), for defendants/third-partyplaintiffs Hi-Rise Recycling Systems Corporation and IDC Systems

McMahon, Martine & Gallagher, LLP (Robert N. Paessler, Esq. of counsel), for defendantsChase Manhattan Bank and Chase Manhattan Bank, N.A. and for third-party defendantAramark Services, Inc.

Jack M. Battaglia, J.

Opinion of the Court

Plaintiff Wilson Bueno alleges that he was seriously injured on August 26, 1999 while attempting to clean a trash compactor, model 10 TDW, distributed by defendants/third-party plaintiffs Hi-Rise Recycling System Corporation and IDC Systems ("Hi-Rise/IDC"). The trash compactor was located on premises owned by defendants Chase Manhattan Bank and Chase Manhattan Bank, N.A., where Plaintiff was working as an employee of third-party defendant Aramark Services, Inc. ("Chase/Aramark"). Plaintiff's Third Amended Verified Complaint alleges causes of action for strict products liability, breach of warranty, and negligence. With this motion and cross-motion, Hi-Rise/IDC and Chase/Aramark, respectively, seek an order, pursuant to CPLR 3212, dismissing the Third Amended Verified Complaint; third-party defendant Aramark seeks in addition dismissal of the Third Party Complaint; and all movants seek dismissal of all cross-claims and counterclaims asserted against them.

None of the movants makes any showing addressed to the allegations of any cross-claim or counterclaim that may be asserted against it, and, therefore, each fails to make a prima facie showing that it is entitled to judgment as a matter of law on any such cross-claim or counterclaim. To the extent the respective motions seek dismissal of any such cross-claim or counterclaim, they must be denied.

Plaintiff contends in the first instance that the Chase/Aramark cross-motion is untimely and cannot, therefore, be considered. Plaintiff's note of issue was filed on August 15, 2008; the Hi-Rise/IDC motion was timely served on October 1, 2008, within the 60-day period prescribed by Rule 13 of the Uniform Civil Term Rules of the Supreme Court, Kings County; but the Chase/Aramark motion was not served until November 19, 2008, significantly beyond the expiration of the prescribed period.

A motion served after the expiration of the 60-day period prescribed by Rule 13 must be denied, unless the movant establishes good cause for the delay. (See Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392 [2d Dept 2008]; Davidson v Brisman, 40 AD3d 574, 574-75 [2d Dept 2007]; Giordano v CSC Holdings, Inc., 29 AD3d 948, 948-49 [2d Dept 2006]; Bevilacqua v City of New York, 21 AD3d 340, 340 [2d Dept 2005].) It matters not that the motion was served within the 120-day period prescribed by CPLR 3212 (a). (See Giudice v Green 292 Madison, LLC, 50 AD3d 506, 506 [1st Dept 2008]; Glasser v Abramovitz, 37 AD3d 194, 194 [1st Dept 2007].) Here, Chase and Aramark take no note of the untimeliness of their motion, even in their Reply Affirmation to Plaintiff's opposition, calling it to their attention, and, therefore, make [*2]no showing of good cause for the delay.

Nonetheless, "an untimely motion or cross motion for summary judgment may be considered where . . . a timely motion for summary judgment was made on nearly identical grounds." (Grande v Peteroy, 39 AD3d 590, 591-92 [2d Dept 2007]; see also Ianello v O'Connor, 58 AD3d 684, 685-86 [2d Dept 2009]; Ellman v Village of Rhinebeck, 41 AD3d 635, 636 [2d Dept 2007].) Generally, a motion seeking summary dismissal of a products liability claim against a distributor of the product and motion for summary dismissal of a negligence claim against the owner of real property will not be deemed based on "nearly identical grounds." (See Podlaski v Long Island Paneling Ctr. of Centereach, Inc., 58 AD3d 825, 826-27 [2d Dept 2009]; Bickelman v Herrill Bowling Corp., 49 AD3d 578, 579-80 [2d Dept 2001].)

To the extent, however, that the liability of Chase or Aramark may be affected by a defect in the compactor, or the warnings related to its use, and to the extent that their liability or a defense may be affected by Plaintiff's fault or questions of proximate cause, which are issues raised by the Hi-Rise/IDC motion, the Chase/Aramark cross-motion may be considered.

Turning to the merits, movants contend that Plaintiff's Second Cause of Action, alleging breach of express and implied warranty, must be dismissed because it is barred by the applicable statute of limitations, found in § 2-725 of the Uniform Commercial Code. Plaintiff alleges that "the defendant," assumed for purposes of this motion to refer to Hi-Rise/IDC as distributor of the compactor, "expressly and impliedly warranted . . . that the product was free from defects, was of merchantable quality and was reasonably fit or safe for the particular purpose for which it was intended," but that "the product was defective and not reasonably safe for the particular purpose for which it was intended under the circumstances." (Third Amended Verified Complaint, ¶ ¶ 72, 73.) Neither Plaintiff's Verified Bill of Particulars dated March 1, 2001 nor his Amended Verified Bill of Particulars dated May 23, 2006 give any additional content to the alleged warranties.

"A cause of action against a manufacturer or distributor based upon breach of warranty must be commenced within four years after it accrues"; "[s]uch a cause of action accrues on the date the party charged tenders delivery of the product." (Csoka v Bliss, 168 AD2d 664, 664 [2d Dept 1990]; see also Uniform Commercial Code § 2-725 [1], [2]; Heller v U.S. Suzuki Motor Corp., 64 NY2d 407, 411 [1985].) There is an exception "where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance," in which case "the cause of action accrues when the breach is or should have been discovered." (See Uniform Commercial Code § 2-725 [2].) There is nothing in Plaintiff's pleadings to suggest a warranty of future performance.

Movants make a prima facie showing that the warranty cause of action is barred by the statute of limitations with evidence that Hi-Rise/IDC sold the compactor no later that June 1992, when it was installed at the premises. Plaintiff's first Verified Complaint was not filed and served until more than seven years later. Plaintiff submits no evidence in opposition that would [*3]create a triable issue, and does not contend that "facts essential to justify opposition may exist but cannot [now] be stated" (see CPLR 3212 [f]), so as to warrant denial of the motion pending efforts to obtain affidavits or further disclosure. Indeed, Plaintiff does not address movants' contention.

The respective motions must be granted, and the Second Cause of Action, alleging breach of express and implied warranty, is dismissed.

"A party injured as a result of a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury." (Speller v Sears, Roebuck & Co., 100 NY2d 38, 41 [2003].) "A product may be defective because of a mistake in the manufacturing process, because of defective design or because of inadequate warnings regarding use of the product." (Sprung v MTR Ravensburg, Inc., 99 NY2d 468, 472 [2003].)

"In New York, a plaintiff injured by an allegedly defective product may seek recovery . . . on the basis of any one or more of four theories of liability." (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106 [1983].) "Depending on the factual context in which the claim arises, the injured plaintiff . . . may state a cause of action in contract, express or implied, on the ground of negligence, or . . . on a theory of strict products liability." (Id. [quoting Victorson v Bock Laundry Mfg. Co., 37 NY2d 395, 400 (1975)].)

Although generally the theory of strict products liability may be distinguished from negligence, in that a defendant may be "strictly liable . . . regardless of . . . foreseeability or reasonable care" (see Sprung v MTR Ravensburg, Inc., 99 NY2d at 472), the law has not developed so neatly. "Under New York law, a design defect may be actionable under a strict products liability theory if the product is not reasonably safe." (Denny v Ford Motor Co., 87 NY2d 248, 256-57 [1995].) Liability is determined by a "negligence-like risk/benefit" inquiry (see id. at 258) that includes "the likelihood that the product will cause injury" and "the availability of a safer design" (see id. at 257.) And a failure-to-warn claim "though it may be couched in terms of strict liability is indistinguishable from a negligence claim." (See Enright v Eli Lilly & Co., 77 NY2d 377, 387 [1991].) "Concepts of reasonable care and foreseeability are not divorced from this theory of liability, as they may be under other strict products liability predicates." (Id.)

Plaintiff's Third Amended Verified Complaint does not in terms allege a defect in design, manufacture, or warning. Plaintiff alleges that the compactor was "in a dangerous, unsafe condition," and that "the defendants" failed to use reasonable care in the "distribution, sale and supply" of the compactor, and failed to provide "proper safeguards to prevent or cure said defective condition." (Third Amended Verified Complaint, ¶ 68.) The Verified Bill of Particulars likewise fails to expressly allege either a manufacturing defect or a design defect, but does allege failure "to properly warn of the dangerous, defective, hazardous and unsafe condition," and specifies that the compactor was "dangerous, defective, hazardous and unsafe in [*4]that its interlocking safety' and/or power system and controls failed to work properly so that when plaintiff was cleaning the machine the machine started despite being in the off mode." (Verified Bill of Particulars, ¶ ¶ 4, 11.) The Amended Verified Bill of Particulars uses the word "manufacturing," but does not in terms allege a manufacturing defect; the only specificity is that the compactor "operated while the control switch was in the off position" and that "the interlocking, safety' and or power system failed to work properly." (Amended Verified Bill of Particulars, ¶ 15-22.)

Subsequent to filing his note of issue on August 15, 2008, Plaintiff served an expert disclosure pursuant to CPLR 3101 (d), dated September 2, 2008, that summarizes the opinions of a professional engineer, John C. Cole. It does not appear that any Defendant objected to the disclosure, and no movant alleges prejudice resulting from service of the disclosure after the filing of the note of issue. (See King v Gregruss Mgmt. Corp., 57 AD3d 851 [2d Dept 2008]; Construction by Singletree, Inc. v Lowe, 55 AD3d 861 [2d Dept 2008].) Indeed, a copy of the disclosure is included among Hi-Rise/IDC's motion papers.

Movants do not use the 3101 (d) expert disclosure to clarify or qualify in any way the defect allegations in Plaintiff's pleadings, and from the contentions on these motions they apparently read the pleadings as alleging products liability based upon both manufacturing and design defect, as well as failure to warn. (See Hi-Rise/IDCAffirmation in Support, ¶ ¶ 21-29). It is axiomatic, therefore, that in order to succeed on their respective motions, Hi-Rise/IDC and Chase/Aramark must establish prima facie that the trash compactor was not defective in any respect, that appropriate warnings were given, or some other defense to products liability.

Preliminarily, movants contend that "Defendants cannot be held liable for negligence or strict liability because the machine was designed pursuant to specifications provided by the purchaser." (Id., ¶ ¶ 31-38.) Included among the arguments on this contention is caselaw addressing the so-called "subsequent modification defense" (see Patino v Lockformer Co., Inc., 303 AD2d 731, 732 [2d Dept 2003].) Movants' reliance on the "subsequent modification defense" is misplaced. Although it is clear that Hi-Rise/IDC "may not be cast in damages, either on a strict products liability or negligence cause of action, where, after the product leaves [their] possession and control . . . , there is a subsequent modification which substantially alters the product" (see Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 475 [1980]), there is no showing here that, after the compactor left Hi-Rise/IDC's "possession and control," it had been "modified" or "altered."

"When a product is manufactured in accordance with plans and specifications provided by the purchaser, the manufacturer is not liable for an injury caused by an alleged design defect in the product, unless the specifications are so patently defective that a manufacturer of ordinary prudence would be placed on notice that the product is dangerous and likely to cause injury." (Houlihan v Morrison Knudsen Corp., 2 AD3d 493, 494 [2d Dept 2003].) Here, Hi-Rise/IDC fails to establish prima facie that the allegedly defective trash compactor was manufactured to the specifications of the purchaser, presumably defendant Chase. [*5]

The evidence presented by Hi-Rise/IDC on the design, manufacture, and sale of the trash compactor, and specifically the hopper and safety switch, is confused if not inconsistent. Many of the citations to the various deposition transcripts (even when a transcript described in the Affirmation in Support is actually attached, which is not always the case) are clearly incorrect, because the testimony on the cited page of the transcript cannot in any way be understood to support the contention for which it is cited. Paragraph 9 of the Affirmation cites to several pages numbered 29 to 73 of Exhibit N to support statements, among others, that "[t]he customer requested this machine without a hopper lid and safety switch," and "[t]he customer intended to supply the machine with a hopper and safety switch," but the first page of the transcript attached as Exhibit N is numbered 96. Paragraph 32 of the Affirmation cites to page 147 of Exhibit O for the contention that "Chase hired Caddy Corp. to design and supply the trash compactor with a hopper and safety devices based upon its own specifications," but the last page of the transcript attached as Exhibit O is numbered 100. Moreover, in apparent contradiction to these statements, paragraph 12 of the Affirmation contends, with an accurate citation to deposition testimony, that "IDC did provide a safety switch for the hopper."

"[S]trict product liability extends to retailers and distributors in the chain of distribution even if they never inspected, controlled, installed or serviced the product'." (Perillo v Pleasant View Assocs., 292 AD2d 773, 774 [4th Dept 2002] [quoting 86 NY Jur 2d, Products Liability, § 108]; see also Joseph v Yenkin Majestic Paint Corp., 261 AD2d 512, 512 [2d Dept 1999].) "However, liability may not be imposed for strict products liability upon a party that is outside the manufacturing, selling, or distribution chain." (Id.)

"Although a plaintiff in a products liability action generally must establish the identity of the manufacturer or supplier of the allegedly defective product . . . , a defendant seeking summary judgment . . . on the ground that it was not the manufacturer or supplier of the allegedly defective product has the initial burden of establishing as a matter of law that it did not manufacture or supply the product." (Ebenezer Baptist Church v Little Giant Mfg. Co., Inc., 28 AD3d 1173, 1173-74 [4th Dept 2006].)

Here, Hi-Rise/IDC states that "the deposition testimony shows that [Hi-Rise/IDC] was merely the distributor of the trash compactor," and that "IDC dealt with Chase to order the machine." (Affirmation in Support, ¶ 36.) Far from carrying its burden on this motion, these statements, supported with admissible evidence, would establish prima facie that Hi-Rise/IDC may be liable for a defect in the trash compactor. If the motion is to succeed, therefore, it must be on the alternative grounds that the compactor was not defective and the accompanying warnings adequate, or that Plaintiff's own conduct was the "sole proximate cause" of his injury.

Turning then to Plaintiff's allegations as to defect, the Court notes in the first instance that "[a]s a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004] [quoting Larkin Trucking Co. v Lisbow Tire Mart, 185 AD2d 614, 614 (4th Dept 1992)].) A defendant must [*6]establish, at least prima facie, the basis for an affirmative defense (see CPLR 3018 [b]), or must negate, at least prima facie, an essential element of the plaintiff's cause of action. (See Gonzalez v Beacon Term. Assoc., L.P., 48 AD3d 518, 519 [2d Dept 2008]; Falah v Stop & Shop Cos., Inc., 41 AD3d 638, 639 [2d Dept 2007]; Restrepo v Rockland Corp., 38 AD3d 742, 743 [2d Dept 2007]; Pappalardo v Long Is. R.R. Co., 36 AD3d 878, 880 [2d Dept 2007]; England v Vacri Construction Corp., 24 AD3d 1122, 1124 [3d Dept 2005]; Calderone v Town of Cortlandt, 15 AD3d 602, 602-03 [2d Dept 2005].)

Here, movants argue that "[t]here is no evidence of a mistake in the manufacturing process" (Hi-Rise/IDC Affirmation in Support, ¶ ¶ 22-26); "[t]here is no evidence of a design defect in the trash compactor" (id., ¶ ¶ 27-28); and "[t]here is no evidence of a failure to warn" (id., ¶ 27.) Such "no evidence" arguments do not provide a route to summary dismissal. Rather, where the motion is not based upon an affirmative defense, a moving defendant's prima facie showing must be assessed by reference to the elements of the plaintiff's prima facie showing on the pleaded cause[s] of action.

"[I]n strict products liability cases involving manufacturing defects, the harm arises from the product's failure to perform in the intended manner due to some flaw in the fabrication process." (Denny v Ford Motor Co., 87 NY2d at 257 n3.) "In order to succeed on such a claim, a plaintiff must establish that the product was not built to specifications or that the product as constructed, deviated from any such specifications or design'." (McArdle v Navistar Intl., 293 AD2d 931, 932 [3d Dept 2002] [quoting Searle v Suburban Propane Div. of Quantum Chem. Corp., 263 AD2d 335, 340 (3d Dept 2000)]; see also Repka v Arctic Cat, Inc., 20 AD3d 916, 919 [4th Dept 2005].)

"On a motion for summary judgment, a defendant seeking the dismissal of a strict products liability claim based on a manufacturing defect must submit admissible proof establishing, as a matter of law, that the product was not defective." (Id. at 932.) A defendant may meet that burden, for example, "by submitting proof that the [product] was built to . . . specifications and was thoroughly examined and approved . . . prior to shipment." (See id. at 932-33.)

Plaintiff's pleadings, as previously noted, do not allege a specific manufacturing defect, and neither does Plaintiff's 3101 (d) Expert Exchange of John C. Cole. For their part, movants provide no affidavits, and point to no deposition testimony, that describes the manufacturing or quality control processes for the compactor or any safety devices. (Compare Preston v Peter Luger Enter., Inc., 51 AD3d 1322, 1324 [3d Dept 2008]; Galletta v Snapple Beverage Corp., 17 AD3d 530, 530 [2d Dept 2005].) It does appear that some inspection of the subject trash compactor was made on the day after Plaintiff's injury by a company that provided maintenance service to Chase (Chase/Aramark Affirmation in Support, ¶ 26), but no details at all are provided, and the testimony is hearsay. Plaintiff's expert also inspected the subject compactor, but not until either February 6, 2008 or February 21, 2008 (depending upon which paragraph of the expert disclosure is credited), and the expert disclosure, in any event, does not support Hi-Rise/IDC's [*7]characterization that the "the safety switch incorporated in the trash compactor was in good working order" (Hi-Rise/IDC Affirmation in Support, ¶ 40.)

There is a fair amount of deposition testimony that the subject trash compactor had been used by Plaintiff and others for some time without incident (see Maciarello v Empire Comfort Sys., 16 AD3d 1009, 1010-11 [3d Dept 2005]), and that there were no incidents of injury or complaints with respect to other model 10 TDW compactors (see Norton v Albany County Airport Authority, 52 AD3d 871, 873 [3d Dept 2008].) But the testimony is not accompanied by any evidence that a manufacturing defect would have been manifest within some period of time (see Maciarello v Empire Comfort Sys., 16 AD3d at 1010.)

Assuming, therefore, that Plaintiff's case proceeds on a specified manufacturing defect, movants have not established prima facie that they are entitled to judgment as a matter of law on that theory. Plaintiff may, however, rely on circumstantial evidence to prove a manufacturing defect.

"[A] products liability cause of action may be proven by circumstantial evidence, and thus, a plaintiff need not identify a specific product defect." (Ramos v Howard Indus., Inc., 10 NY3d 218, 223 [2008].) "In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product's failure that are not attributable to defendants." Id. [quoting Speller v Sears, Roebuck & Co., 100 NY2d at 41].) "If , however, a plaintiff is unable to prove both elements, a jury may not infer that the harm was caused by a defective product unless plaintiff offers competent evidence identifying a specific flaw'." (Id. [quoting Speller v Sears, Roebuck & Co., 100 NY2d at 42].) Or, "if a defendant comes forward with any evidence that the accident was not necessarily attributable to a defect, the plaintiff must then produce direct evidence of a defect." (See Schneidman v Whitaker Co., 304 AD2d 642, 643 [2d Dept 2003] [internal quotation marks and citations omitted].)

Where the plaintiff is proceeding on the basis of circumstantial evidence, a defendant seeking summary judgment makes a prima facie showing that it is entitled to judgment as a matter of law by negating at least one of the two elements of the plaintiff's circumstantial showing - - that is, by establishing that "the subject product performed as intended or that there existed a likely cause of the [plaintiff's] injuries not attributable to any defect in the design or manufacturing of the product." (See Calandra v Crane Plumbing, 54 AD3d 655, 656 [2d Dept 2008]; see also Koslow v Zenith Electronics Corp., 45 AD3d 810, 810-11 [2d Dept 2007].)

Movants make no prima facie showing that the compactor performed as intended. "The safety switch for the hopper was designed to automatically turn off the compactor when the hopper lid was opened"; "[w]hen the lid was removed from the trash compactor the machine would turn off automatically"; [w]hen the machine turns off, the trash compactor stops moving completely." (Hi-Rise/IDC Affirmation in Support, ¶ ¶ 12, 15; see also Chase/Aramark [*8]Affirmation in Support, ¶ 25.) Indeed, Plaintiff was told by his employer that "by removing the safety cover the trash compactor would automatically shut down"; and that "removing the safety cover stops the machine from compacting even if the power to the trash compactor is still on." (Id., ¶ 16.)

The only evidence is that "[b]efore [Plaintiff] started to clean the trash compactor on the date of his accident he shut it off with the on/off button" (id., ¶ 14); and that Plaintiff "removed the safety cover to the trash compactor before starting to clean it or place his hand in it" (id.); but that the compactor operated nonetheless when he placed his hand into it to remove debris, causing his injury. The only evidence, therefore, is that the compactor did not perform as intended.

Nor have movants made a prima facie showing that there exists a likely cause for Plaintiff's injury that is not attributable to a manufacturing defect. Although movants contend that Plaintiff's injury is the result of his own negligent conduct, placing his hand into the compactor when there were alternative methods for removing the debris (Hi-Rise/IDC Affirmation in Support, ¶ ¶ 23, 24), there is no evidence that the compactor was caused to operate, even though the lid/cover had been removed, because Plaintiff placed his hand into it. Whether or not Plaintiff's conduct was blameworthy in some respect, it does not provide an alternative cause for the compactor to operate without the lid/cover, and, therefore, it provides no evidence that a circumstantial showing of manufacturing defect cannot be made.

"In order to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury." (Voss v Black & Decker Mfg. Co., 59 NY2d at 107.) "[T]he proper standard to be applied should be whether the product as designed was not reasonably safe' - - that is, whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk in marketing a product designed in that manner." (Id. at 108.)

"In balancing the risks inherent in the product, as designed, against its utility and cost, the jury may consider several factors[,] . . . includ[ing] the following: (1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product - - that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) that ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which can reasonably be attributed to the plaintiff; and (7) the manufacturer's ability to spread any cost related to improving the safety of the design." (Id. at 208-09.)

Given this complex analytical framework, a formula for a defendant's prima facie showing on summary judgment is not easily stated. To state, for example, that a defendant "met [*9]its initial burden of establishing that [the product] was reasonably safe and did not present an unreasonable risk of harm to the user" (see Sexton v Cincinatti Inc., 16 AD3d 1090, 1091 [4th Dept 2005]) without further elaboration is not particularly helpful. Such a showing may be made, however, with evidence that, "at the time of its manufacture . . . , the [product] was state of the art, contained the same safety devices as comparable machines produced by its competition, and conformed to industry safety standards." (See Magadan v Interstate Packaging Corp., 45 AD3d 650, 651-52 [2d Dept 2007].) A defendant may also make its prima facie showing in a design defect case with evidence that the plaintiff's own negligence was the sole proximate cause of any injury sustained. (See Donuk v Sears, Roebuck & Co., 52 AD3d 456, 456-57 [2d Dept 2008].)

Whether or not Plaintiff's pleadings might fairly read as alleging a specific design defect, Plaintiff's 3101 (d) expert disclosure certainly does so. The expert contends that the compactor was "defective and unsafe . . . in that the accident was caused by the failure of the compactor and the conveyor counter designers to require the installation of a tamper resistant safety switch"; that "[t]he demonstrative ease by which the safety switch could be defeated was foreseeable"; and that "a reasonable comparable, or alternative designs, which were comparably priced and existed at the time of manufacture, sale, and distribution, and sale of this compactor was available." (Plaintiff's 3101 (d) Expert Exchange of John C. Cole, ¶ ¶ 9, 10.)

Movants provide no affidavit, and point to no deposition testimony, that addresses any of the factors considered in the risk/utility balance, except for "the ability of [Plaintiff] to have avoided injury by careful use of the product," and "the degree of awareness of the potential danger of the product which can reasonably be attributed to [Plaintiff]" (see Voss v Black & Decker Mfg. Co., 59 NY2d at 208-09.) Assuming that a defendant may make a prima facie showing on risk/utility with evidence only related to the plaintiff's conduct, that showing cannot be made here. There is no evidence that Plaintiff was aware that the compactor would operate even when turned off and the lid/cover removed, but, rather, there is evidence that he was not.

Undoubtedly, the absence of prior incidents of harm over a long period of product use is relevant to determining whether a product is "not reasonably safe" and presents a "substantial likelihood of harm." (See Kelly v Acad. Broadway Corp., 206 AD2d 794, 794-95 [3d Dept 1994]; Delgado v Markwort Sporting Goods Co., 13 Misc 3d 1227 [A], 2006 NY Slip Op 52007 [U], * 5- * 7 [Civ Ct, Kings County].) Assuming, however, that such a showing alone may establish prima facie that a product is not defectively designed, there must be more extensive demonstration as to the nature of the product, the circumstances of its use, and the opportunities for any potential for harm to be realized.

"A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known." (Liriano v Hobart Corp., 92 NY2d 232, 237 [1998].) "A manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable." (Id.) "[A] manufacturer may be liable for failing to warn against the dangers of foreseeable misuse of its product." (Id. at 240.) "[A] [*10]manufacturer may have a duty to warn of dangers associated with the use of its product even after it has been sold." (Id.) "Such a duty will generally arise where a defect or danger is revealed by user operation and brought to the attention of the manufacturer; the existence and scope of such a duty are generally fact-specific." (Id.) "Unlike design decisions that involve the consideration of many interdependent factors, the inquiry in a duty to warn case is much more limited, focusing principally on the foreseeability of the risk and the adequacy and effectiveness of any warning." (Id. at 239.)

But "where the injured party was fully aware of the hazard through general knowledge, observation or common sense, . . . lack of a warning about that danger may well obviate the failure to warn as a legal cause of an injury resulting from that danger"; and "a limited class of hazards need not be warned of as a matter of law because they are patently dangerous or pose open and obvious risks." (Id. at 241.) "[T]he open and obvious defense generally should not apply when there are aspects of the hazard which are concealed or not reasonably apparent to the user." (Id. at 242.)

"Failure-to-warn liability is intensely fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances . . . ; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause." (Id. at 243.) For this reason, the elements of failure-to-warn liability and the limitations on that liability are generally questions for a jury. (See id. at 241-42; see also Magadan v Interstate Packaging Corp., 45 AD3d at 652-53; Nagel v Brothers Intl. Food, Inc., 34 AD3d 545, 547-48 [2d Dept 2006]; Repka v Arctic Cat, Inc., 20 AD3d at 918.)

For the same reason, a formulation for a defendant's prima facie showing on a failure-to-warn claim is not easily stated. It is fair to say, however, that the plaintiff must have been warned, or otherwise have been fully aware, of the "specific hazard" that caused injury. (See Lichtenstein v Fantastic Merchandise Corp., 46 AD3d 762, 765 [2d Dept 2007]; Montufar v Shiva Automation Serv., 256 AD2d 607, 608 [2d Dept 1998].) Movants here have failed to make a prima facie showing.

There is no doubt, and there is substantial evidence on these motions, that Plaintiff was warned about, and was fully aware of, the danger of placing his hand into the compactor without stopping its operation. If Plaintiff had placed his hand into the compactor without stopping its operation, his claim based upon a failure to warn, as well as his claims alleging negligence and strict products liability, would almost certainly fail. (See Donuk v Sears, Roebuck & Co., 52 AD3d at 456-57.) But the evidence is that he turned off the compactor, and removed the safety cover, before placing his hand into it, which is what he was trained to do. (Chase/Aramark Affirmation in Support, ¶ ¶ 14, 16, 25.)

Movants make no showing that Plaintiff was ever warned that the compactor would operate, and thus present a risk of injury, even though it was turned off and the lid/cover was removed or open. Indeed, he was apparently told quite the contrary. (Id.) Movants fail to show, [*11]therefore, that Plaintiff was properly warned of the "specific hazard" that resulted in his injury, or that he was otherwise fully aware of it.

Undoubtedly, "[t]here can be no negligence in failing to warn about a risk in the absence of evidence that would justify a finding that a manufacturer . . . knew or in the exercise of reasonable care should have known about it." (Goldberg v Union Hardware Co., 162 AD2d 658, 659 [2d Dept 1990] [quoting Prosser and Keeton, Torts §96, at 685 (5th ed)].) The absence of reported incidents of harm resulting from a "specific hazard," or that the product could malfunction as it did in causing the plaintiff's harm, is certainly material to the existence of a duty to warn. (See id. at 658-59.) But the potential for harm is, in the first instance, dependent upon the product's design, and the absence of harm or malfunction in itself, without competent evidence of the potential for harm based on the product's design, is insufficient to meet a defendant's burden on seeking summary dismissal of a failure-to-warn claim.

Finally, movants contend that Plaintiff's own conduct was the sole proximate cause of his injury, citing Donuk v Sears, Roebuck & Co. (52 AD3d 456.) There, the plaintiff was deemed negligent "in placing his fingers into the discharge chute of [a] snow thrower without stopping the engine, despite warning labels on the machine cautioning against such conduct," and that such negligence was the "sole proximate cause of his injuries." (See id. at 456-57.)

Here, however, in the absence of adequate warnings, movants fail to establish prima facie that Plaintiff failed to use reasonable care, and, if so, that his conduct and the resultant injury were "extraordinary, unforeseeable or attenuated from [the] allegedly defective design or manufacture of the [compactor] or [the] alleged failure to warn." (See Repka v Arctic Cat, Inc., 20 AD3d at 920 [quoting Lamey v Foley, 188 AD2d 157, 169 (4th Dept 1993)]; see also Schafer v Standard Ry. Fusee Corp, 200 AD2d 564, 565 [2d Dept 1994].) There is no evidence of any conduct by Plaintiff that would have caused the compactor to operate even though it was turned off and the lid/cover had been removed. It is not enough that Plaintiff's injury resulted when he placed his hand into a trash compactor. (See Cekic v Royal-Pak Systems, Inc., ___ AD3d____, 2009 NY Slip Op 1077 [2d Dept, February 10, 2009].)

Since movants have failed to make a prima facie showing that Plaintiff's causes of action in negligence and strict products liability should be dismissed, it is unnecessary to consider Plaintiff's opposition papers. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].)

The motion and cross-motion are granted only to the extent that the Second Cause of Action, alleging breach of express and implied warranty, is dismissed; and are otherwise denied.

April 9, 2009___________________

Jack M. Battaglia

Justice, Supreme Court