Juanita Birriel v F.L. Smithe Machine Co., Inc.

Birriel v F.L. Smithe Mach. Co., Inc. 2005 NY Slip Op 08600 [23 AD3d 205] November 10, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Juanita Birriel, Respondent-Appellant,
v
F.L. Smithe Machine Co., Inc., Appellant-Respondent and Third-Party Plaintiff. New York Envelope Corporation, Third-Party Defendant-Appellant.

—[*1]

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or about October 8, 2004, which denied the motions by defendant and plaintiff for summary judgment, unanimously affirmed, without costs.

It is well settled that a manufacturer is not responsible for injuries resulting from substantial alterations to or modifications of a product by a third party that render the product defective or otherwise unsafe (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 475 [1980]), except where the product is purposefully manufactured to permit or encourage its use without a designed safety feature (Liriano v Hobart Corp., 92 NY2d 232 [1998]). There are issues of fact as to when the alleged modification took place on the machine that led to plaintiff's injuries, and whether Smithe performed or authorized that alteration (Lopez v Precision Papers, 67 NY2d 871 [1986]). [*2]

We have considered the parties' other arguments for affirmative relief and find them unavailing. Concur—Buckley, P.J., Saxe, Nardelli, Williams and Catterson, JJ.