Messner v City of New York

[*1] Messner v City of New York/Department of Sanitation 2010 NY Slip Op 51486(U) [28 Misc 3d 1224(A)] Decided on June 28, 2010 Supreme Court, Richmond County Aliotta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 28, 2010; it will not be published in the printed Official Reports.

Decided on June 28, 2010
Supreme Court, Richmond County

James Messner and Sandra Messner, Part C-2, Plaintiffs

against

The City of New York/Department of Sanitation, Michael Hackett, Mack Trucks, Inc., Heil Environmental Industries, Ltd., and "John Does 1-10", first and last name being fictitious and representing agents, servants and/or employees of the, Defendants, Defendants.



101890/06



Plaintiff: Nicholas Martino, Jr., Esq.

Defendants:

Corporation Counsel City of NY & Hackett

Maimone & Associates, PLLC, Mack Truck

Decicco, Gibbons & McNamara, Heil Environmental Industries

Thomas P. Aliotta, J.

Plaintiffs, James Messner and Sandra Messner move for an order (Motion No. 3998) pursuant to CPLR 3212 granting them summary judgment against defendants the Heil Company s/h/a Heil Environmental Industries Ltd. (hereinafter "Heil"), Mack Trucks, Inc. (hereinafter "Mack"), the City of New York/Department of Sanitation (hereinafter "the City") and Michael Hackett (hereinafter "Hackett"). All of the defendants oppose such motion, and (cross) move respectively for summary judgment dismissing the complaint as against each (Motion Nos. 3994, [Heil], 4066 [Mack] and 113 [the City]. Plaintiffs oppose all three motions. Heil supports, in part, and opposes, in part, the City's motion[FN1].

This action arises from an accident which occurred on September 15, 2005, at approximately 10:00 A.M., in which plaintiff James Messner, a New York City Sanitation worker (hereinafter "plaintiff"), was injured while performing his garbage collection duties on Staten Island. It is alleged that on said date, plaintiff, a 15-year veteran of the Sanitation Department, was standing behind a garbage truck (Model 25-CU-041) manufactured by Mack and Heil and attempting to maneuver a

scrap piece of wood into the hopper, i.e., the rear portion of the truck into which debris is loaded, when the hopper appeared to self-activate, and his hand got caught on the wood thereby pulling both his arm and body into the hopper mechanism crushing his right hand and arm. At the time of the accident, plaintiff was working with co-defendant Michael Hackett, who was seated in the driver's compartment when the accident occurred. Plaintiff served a notice of claim upon the City on or about October 11, 2005, and an amended notice of claim on or about December 8, 2005. This action [*2]was commenced by the filing and service of a summons with complaint upon the defendants on or about June 15, 2006. Issue was joined by the service of answers by the City on or about August 23, 2006; by Heil on or about November 13, 2006; and by Mack on or about November 27, 2006. A Note of Issue was filed on September 10, 2009.

In the complaint, plaintiff alleges 23 causes of action, claiming that the accident "occurred as a result of the carelessness, negligence and recklessness of the defendants, their agents, servants and/or employees in their ownership, design, manufacturing, operation, control, maintenance, repair, supervision, inspection and care of the subject sanitation truck." As to Mack and Heil, plaintiff asserts multiple causes of action for (a) negligent design, (b) negligent manufacture, ( c) punitive damages, (d) breach of express warranty, (e) breach of implied warranty, (f) strict products liability, (g) failure to warn. (h) failure to inspect, (i) breach of contract, (j) negligence, and (h) gross negligence. As to the City and Hackett, plaintiff also alleges, improper maintenance, negligent hiring, improper design and/or that Hackett either causing the accident by activating the "hopper" from inside the cab, or failing to timely rescue plaintiff before he was injured.

Before proceeding to the respective applications of each of the parties, the Court believes that some background information is necessary in order to place the contentions of each movant in proper perspective. This information has been gleaned from the voluminous deposition testimony and affidavits attached to the respective moving papers, and is summarized here in an effort to foreshorten this decision..

As is relevant, Mack is a corporation in the business of assembling "incomplete" heavy duty vehicles consisting of a cab, chassis and frame rails. Onto these "incomplete" vehicles some other entity (such as Heil) performs further assembly, installing a cargo-carrying or other type of truck body (Affidavit of Thomas Brown dated December 9, 2009). In the instant case, the vehicle in question was ordered from Mack and Heil after a competitive bidding process based upon a detailed set of specifications produced, established and promulgated by the City and its planning division (Iannone E/B/T p 11). As a general rule, manufacturers are not consulted or otherwise involved in the drafting of these specifications (Iannone E/B/T pp 13, 15). Here, it is undisputed that the terms of the bidding process did not permit any variation from the specifications provided by the City, and required the cab, chassis and frame rails of the prevailing bidder (i.e., Mack) to work with the manufacturer of the truck body (i.e., Heil) which was approved by the City. Thus, with respect to the vehicle at issue, a series 25 CU collection truck, the bids by both Mack and Heil were required to conform to the City's specifications, which did not provide for the installation of a centrally located cut-off switch for the hopper to be located on the rear bumper (Iannone E/B/T p 48). Instead, reliance for safety was placed upon the use of "bi-lateral hopper control levers". This exclusion from the City's list of specifications was apparently the result of numerous maintenance problems which arose in earlier production vehicles equipped with such a switch which kept breaking down because of its location (Zuccaro E/B/T p 28). In this regard, it was asserted that the frequency of damage to such switches diminished vehicle availability and impeded the day-to-day functioning of the vehicles available for use by the Sanitation Department. As a result, it was decided to employ the (alternate) bi—lateral safety mechanism for the hopper, a design that has been in use since the 1980's, not only in the City, but the Country as well (Zanzig Affidavit dated December 4, 2009). After their bids were accepted by the City, a prototype vehicle was created by mating a Mack chassis with a Heil refuse body. After extensive testing by both manufacturers and the City, the vehicle was found to perform in accordance with the City's detailed specifications, and was put into production (Paturalski E/B/T pp 33, 128).

In support of its summary judgment application, defendant Heil has submitted an attorney's affirmation, affidavits by Larry Stone (an account manager with Heil) and Jerald Zanzig (an acknowledged expert witness in the fields of engineering and products liability). Also submitted was a copy of the accident report prepared by the Department of Sanitation (DOS), photographs and a copy of the deposition testimony of (1) George Iannone, (2) George Paturalski, (3) Danton Wickline, (4) Louis Zuccaro, (5) Michael Hackett, (6) plaintiff James Messner, (7) James Tynan and (8) Martin Caputo. Based upon these submission, Heil contends that no triable issues of fact [*3]exist upon which liability could be imposed upon it. In particular, Heil alleges that the following facts are uncontrovertible. First, the design of the hopper was reasonably safe for its intended use based upon a "tried and tested" design in use in New York City and various other public and private collection agencies throughout the United States. Second, the failure to include a bumper shut-off switch was based upon the specifications provided by the City of New York. Third, there is no evidence of any manufacturing defect or a failure to inspect, as the design was extensively tested and approved by the City of New York. Fourth, the breach of warranty claims, expressed or implied, are barred by the four-year statute of limitations applicable to the vehicle in question, which was put into service on August 28, 2001. Fifth, there can be no claim for failure to warn because the condition of the hopper was "open and obvious" and had been in use for many years. Sixth, plaintiff has failed to demonstrate any factual basis for an award of punitive damages or that he was a third-party beneficiary of the contract between the City of New York and Heil. Seventh, plaintiff has failed to create any triable issue of fact as to any negligence or gross negligence on the part of Heil. Eight, the design of the hopper did not allow plaintiff's co-worker, Hackett, to initiate its operation from the cab of the vehicle, but only to interrupt it. Ninth, plaintiff had never experienced any problems with the hopper prior to his accident and, in fact, told James Tynan (a safety officer with the DOS) that the accident occurred while he was pushing a piece of plywood into the hopper and not, as he now claims, during its unintended activation. And, tenth, the hopper mechanism was warranted for only two years. Accordingly, Heil contends that the complaint as against it should be dismissed.

In support of its separate motion for summary judgment, defendant Mack has submitted an attorney's affirmation, a copy of plaintiffs' pleadings and their bill of particulars, the affidavits of Jerald Zanzig, Larry Stone and Thomas Brown, copies of certain warranty documents and maintenance records relevant to the vehicle in question, the "bid package" furnished to it by the City and copies of the deposition testimony of the same witnesses proffered by Heil. Based upon these submissions, Mack contends that no triable issue of fact exists upon which it may be held liable for plaintiff's injury. In this regard, Mack relies upon nearly all of the arguments raised by Heil including, without limitation, that (1) the hopper design was reasonable and safe for its intended use; (2) the City's specifications did not provide for a rear mounted cut-off switch; (3) there is no evidence that the hopper self-activated in light of plaintiff's admissions to his supervisor, James Tynan and (4) the record is devoid of any reports of similar accidents involving the self-activation of the hopper mechanism at any time either before or after plaintiff's accident. Mack also argues that it may not be liable as a matter of law on a "negligent design" theory because (a) it did not design the refuse body or any of its components, including the hopper and (b) there is no evidence that the design of the cab chassis or frame caused or contributed to the occurrence. Next, the Court will enumerate the City's contentions in support of its hybrid application under CPLR 3211 (a) (7); 3212.

The City moves for an order dismissing the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action or, in the alternative, summary judgment pursuant to CPLR 3212. In support, the City has submitted an attorney's affirmation, a copy of the pleadings and bill of particulars, a copy of plaintiff's deposition testimony, copies of the deposition testimony of Michael Hackett, George Iannone, Louis Zuccaro, James Tynan and Joseph Crosby, as well as copies of the inspection and maintenance reports for the subject vehicle. Based upon these submissions, the City contends that plaintiffs have failed to state a cause of action or, in the alternative, that no triable issues of fact exist upon which liability may be predicated against it. In support of these positions, the City makes the following arguments. First, the City maintains that the 25CU model collection truck was reasonably safe for its intended use and, in any event, the City's decision to purchase and deploy same is not actionable as it devolved from an exercise of governmental discretion. Second, there is no evidence of any mechanical defect in the truck. Third, plaintiff's allegations in support of his suit are incredible as a matter of law. And, fourth, the municipal defendants (i.e., both the City and plaintiff's fellow employee, Hackett) cannot be held liable for failing to effectuate a more expeditious rescue operation. Thus, the City contends that plaintiffs have failed to state a viable cause of action or demonstrate the existence of triable issues of fact on the issue of its liability for plaintiff's injuries. [*4]

For their part, plaintiffs oppose all of the defendants' motions, and move for partial summary judgment against each on the issue of liability. In support of their application, plaintiffs have submitted an attorneys affirmation, expert affidavits by Irving U. Ojalvo and Kristopher J. Seluga, the affirmations of Doctors John C. L'Insalata and Anne Marie Stilwell, a memorandum of law, copies of the pleadings and bill of particulars, copies of the deposition testimony of most of the same witnesses as defendants Heil and Mack (with the exception of James Tynan) and Joseph Crosby, Michael Fasano and Larry G. Stone, photographs, copies of the accident and unusual occurrence reports dated September 15, 2004, a copy of his line-of-duty injury report, a copy of the specifications for the purchase of collection truck in issue, the maintenance reports for said vehicle, a copy of the sanitation worker's manual, a copy of the certificate of origin of the vehicle in issue, a copy of the maintenance manual for said vehicle, a copy of the post-accident inspection report and a copy of a letter dated December 1, 2005 (i.e., post-accident) revealing five other instances in which "notice of claims" were filed against the City in cases where a sanitation worker allegedly had a hand or arm crushed by the "hopper" of a sanitation truck, but with no indication of the results. Based upon these submissions, plaintiffs contend that they are entitled to summary judgment on the issue of liability as against each of the defendants. In particular, plaintiffs allege the following bases for liability (1) as against Heil and Mack (a) for placing a defective truck into commerce; (b) breach of their implied warranties of merchantability and fitness for use, and (c) failing to provide adequate warnings of a latent defect; (2) as against the City for (a) improper maintenance and repair of said vehicle; (b) Hackett's failure to keep his partner under surveillance; (c) his failure to respond to his partner's plea for help in a timely fashion; (d) the failure to provide plaintiff with a reasonably safe truck and (e) the violation of various statutory provisions. In addition, plaintiffs contend they do not have to prove the specific or precise defect in order to prevail under a theory of strict products liability, and are entitled to submit evidence of subsequent design modifications to the subject truck in support thereof. Thus, plaintiffs contend that no triable issues of fact exist which would preclude the granting of summary judgment on the issue of liability as against each of the defendants, all of which oppose plaintiffs' motion.

As previously indicated, Heil supports, in part, and opposes, in part, the City's motion.

CPLR 3211(a)(7)

When reviewing a motion to dismiss a complaint for failure to state a cause of action, the Court "must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414; see Wildman v. Rosenthal, 40 AD3d 749).

CPLR 3212

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v. Ceppos, 46 NY2d 223; Herrin v. Airborne Freight Corp., 301 AD2d 500). On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v. Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v. Mayo, 148 AD2d 580). To prevail upon the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Upon its failure to do so, the motion will be denied. Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v. City of New York, 49 NY2d 557, 562). In this regard, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue (id. at 562). Thus, summary judgment is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact (Persaud v. Darbeau, 13 AD3d 347).

[*5]Strict Products Liability

It is beyond doubt that a party injured as a result in a defect in a product may seek relief against the manufacturer or others within the distribution chain if said defect was a substantial factor in causing the injury (see Speller v. Sears, Roebuck & Co., 100 NY2d 38, 41). For the sake of simplicity, the three generally recognized categories of defects which will support a recovery are (1) a mistake in manufacturing, (2) improper design, and (3) inadequate or omitted warnings regarding the use of the product (see Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 478; accord Liriano v. Hobart Corp., 92 NY2d 232). Here, plaintiffs have alleged all three categories of defects.

With respect to the ability to demonstrate a prima facie case of a manufacturing flaw or defect, the critical date is the date of manufacture. Thus, plaintiffs herein must establish the existence of a defect at the time that the product left the manufacturer's facility (see Steckal v. Haughton Elevator Co., 59 NY2d 628, 629). With respect to allegations of a design defect, however, the seminal issue is whether the product, as designed, was reasonably safe for its intended use, an analysis which involves a balancing of the reasonableness of the risk presented by the design defect, had it been known, against the risk inherent in marketing the product in its current form (see Adams v. Genie Indus., Inc., ___ NY3d ___, 2010 NY Slip Op 4022; Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 107). In this context, it is normally the manufacturer who "is in the superior position to discover any design defects and alter the design before making the product available" (Voss v. Black & Decker Mfg. Co., 59 NY2d at 107). Nevertheless, an exception exists where an optimal safety feature may be missing, and the evidence and reasonable inferences to be drawn therefrom demonstrate that (1) the buyer is thoroughly familiar with the product and that the safety feature in question is available; (2) the product without said feature is not unreasonably dangerous under its normal circumstances of use, and (3) the buyer is in a position to balance the benefits and risks of not having the safety feature incorporated into the product . In such circumstances, the product will not be considered defective (see Scarangella v. Thomas Built Buses, Inc., 93 NY2d 655, 661). With respect to a claim of inadequate warnings, it is well established that a manufacturer or retailer may incur liability for failing to warn third parties of the dangers inherent in the use of a particular product, especially where the danger has been brought to the manufacturer's or retailer's attention (see Cover v. Cohen, 61 NY2d 261, 274-275). However, while the existence and scope of the duty to warn is generally one of fact for the jury, the extent of the injured party's knowledge of the injury- causing hazard may render the manufacturer's failure to warn superfluous as a matter of law (Liriano v. Hobart Corp., 92 NY2d at 240, 241; Carver v. Cohen, 61 NY2d at 276, 277). Thus, in the absence of , e.g, probative affidavits by plaintiffs' experts (see infra), no cause of action for strict liability can be stated or proved.

Breach of Warranty

The concept of liability predicated upon an alleged breach of warranty is well understood, and requires little in the way of background. Here, it is uncontroverted that Heil normally provided a six-month warranty on the "hopper" mechanism, but that the specifications promulgated by the City required that Heil's warranty on all parts manufactured by it be extended to one-year, plus an additional two years specifically on the hydraulic system that included the "hopper" mechanism. As is relevant, the vehicle in question was put into service on August 28, 2001 (Affidavit of Larry G. Stone dated December 1, 2009). Under the UCC, a cause of action for any claim based on an alleged breach of warranty, expressed or implied, is subject to a four-year statute of limitation measured from the tender of delivery[FN2] (see UCC § 2-725 [1][2], Heller v. U.S. Suzuki Motor Corp., 64 NY2d 407, 411; Donuk v. Sears, Roebuck & Co., 52 AD3d 456, lv denied 12 NY3d 706). Accordingly, [*6]any cause of action for breach of warranty, express or implied that plaintiff's may have had is now time-barred. In contrast, by operation of law any action sounding in negligence and/or strict products liability accrues on the date of injury and remains viable at this time.

Breach of Contract

As opposed to a cause of action for breach of warranty under UCC § 2-318 (see footnote 2), a cause of action for breach of contract is generally viable only as between the vendor and the vendee. Nevertheless, plaintiffs at bar have asserted in their twenty-second cause of action that plaintiff James Messner was a third-party beneficiary of the contract between the City and Mack/Heil. Accordingly, plaintiff has asserted breach of contract claims against each. However, the Court must note that there is nothing in the papers before it demonstrating that plaintiff was an end-user, or an intended third- party beneficiary of the underlying contracts nor do any of the relevant documents identify him as such. Moreover, none of the judicially recognized predicates for third-party liability apply (see Espinal v. Melville Snow Contrs., Inc., 98 NY2d 136; O'Gorman v. Gold Shield Security & Investigation, Inc., 221 AD2d 325, 326). Hence, plaintiff's cause of action for breach of contract must be dismissed.

The Common-Law Negligence of Mack and/or Heil

In addition to their claims sounding in strict liability, breach of contract and breach of warranty, plaintiffs have brought claims against Mack and Heil sounding in common-law negligence and gross negligence. It is beyond cavil that manufacturers and sellers may be held liable for injuries caused by ordinary negligence, i.e., the failure to exercise reasonable care in avoiding the occurrence of injuries which can be reasonably expected of a product which would be dangerous if negligently manufactured or sold (see generally, MacPherson v. Buick Motor Co., 217 NY 382, cf. Codling v. Paglia, 32 NY2d 330). As to allegations of gross negligence, however, it must be noted that such conduct differs in both kind and degree from the mere failure to exercise due care, and arises only in circumstances when the conduct of the tortfeasor evinces either a (1) reckless disregard for the safety or rights of others or (2) "smacks" of intentional wrongdoing (see e.g. Colnaghi U.S.A, Ltd. v. Jewelers Protection Servs., 81 NY2d 821). No proof of either is evident in the case at bar.

Punitive Damages

It is well established that there is no separate cause of action for punitive damages recognized in New York (see Horn v. New York Times, 100 NY2d 85). Moreover, punitive damages are recoverable only where the wrongdoing at issue may be characterized as intentional or deliberate, with an element of willfulness and wanton disregard sufficient to imply criminal indifference (Prozeralik v. Capital Cities Communications, Inc., 82 NY2d 466, 478-479 [internal quotation marks omitted]; ; Fragrancenet.com., Inc. v. Fragrancex.com,, Inc., 68 AD3d 1051, 1052). Again, the Court finds that no such proof is evident in the case at bar.

Governmental Immunity

The long-standing doctrine of governmental immunity recognizes that a municipality may not be held liable for damages resulting from official action undertaken in the exercise of reasoned discretion (Tango v. Tulevech, 61 NY2d 34, 40-41). As applicable here, the City urges that its discretionary decision to deploy collection vehicles lacking in a centrally located rear bumper cut-off switch for the "hopper" is of just such a nature, and absolves it of liability. This is an argument with which the Court must agree, as it is readily apparent that the failure to specify the inclusion of such device rested upon past experience with maintenance concerns associated with the functionality of rear bumper cut-off switches and not as a result of a purely ministerial determination. Moreover, there is no legal requirement that a municipality provide its employees with the most protective equipment on the market, so long as the product is reasonably safe for its intended use (McCormack v. City of New York, 80 NY2d 808, 810; see Amodio v. City of New York, 33 AD3d 456, lv denied 8 NY3d 805). [*7]

As suggested earlier, the expert affirmations offered by plaintiffs in support of their motion do not take issue with the fact that the 25 CU model truck at issue (1) was reasonably suited for its intended purpose; (2) employed a tried and tested design in use throughout the United States, as well as abroad; and (3) had proven itself to be reasonably safe for its intended use. In this regard, it is not without significance that the seven sanitation employees deposed in this action, including plaintiff, had never heard of a prior instance in which a sanitation worker had been injured by a spontaneously self-activating "hopper". Moreover, there is case law to the effect that the choice of a particular type of refuse truck is precisely the type of discretionary decision entitled to governmental immunity from tort (Heckel v. City of New York, 60 AD3d 812, 813; lv denied 12 NY3d 712).

The Common-Law Negligence of the City's Maintenance Employees[FN3]

In addition to their claim that the City was negligent in the selection of a suitable vehicle, plaintiffs allege that the City was negligent in maintaining said vehicle. In particular, it is alleged that the "hopper" self-activated because the level of oil in the hydraulic system responsible for operating the "hopper" was below normal due to an unrepaired oil leak. Contrary to this allegation, the documentary evidence and deposition testimony of several witnesses in no way supports plaintiffs' contention. Rather a review of the tendered maintenance and repair records of the subject vehicle indicate that the component parts of the "hopper" were subject to regular preventative maintenance every 40 days, and that none of them had ever required replacement.In fact, not only was the hydraulic hopper linkage expected to last for the full seven-year life span of its vehicle, but it was equipped with a "fail-safe" mechanism that would shut down the "hopper" if there was insufficient oil in the system (Iannone E/B/T p 45-46, 118). Moreover, the evidence that the "hopper" could not go on by itself in the manner alleged by plaintiff is uncontroverted. Additional testimony showed that on the morning of the accident, plaintiff spent 15 minutes inspecting the vehicle and uncovered no mechanical problems (Messner E/B/T p 19-23), while a post-accident inspection revealed that the oil level was not below normal. To the contrary, the "hopper" controls were inspected within a brief period of time after the accident and found to be operating normally. Neither was there any record of the truck in question having been taken out of service for prior hydraulic malfunctions or difficulties with the hopper.

Finally, the Court would be remiss were it not to note that plaintiff's present position is belied by the statements he made shortly after the accident to James Tynan, a sanitation supervisor. In describing the accident, plaintiff told Mr. Tynan that he had pushed some plywood into the "hopper" while it was cycling when somehow his glove hand got caught and his arm was pulled into the mechanism (Tynan E/B/T p 19-20). At no point did plaintiff tell Tynan that the "hopper" self-activated or was activated unintentionally (Tynan E/B/T p 28). This version is also memorialized in a safety report dated September 15, 2005 completed by safety officer Stephen Gliboff.

Equally unavailing is plaintiff's claim that the municipal defendants, including his fellow employee, Hackett, acted negligently in failing to promptly remove him from the "hopper". It is speculative to the point of incredulity to argue that any delay in rescuing plaintiff was a substantial factor in causing the accident. Neither have plaintiffs offered any medical evidence linking the purported delay to any additional injury. There is also no proof that Hackett, as the driver of the vehicle, was obliged to continually monitor plaintiff as he was loading refuse into the "hopper". Thus, plaintiff's claims of negligence as against the City rest upon pure speculation.

Plaintiffs' Expert Affidavits

In support of their motion for partial summary judgment, and in opposition to each of the defendant motions, plaintiffs have submitted expert affidavits by Irving U. Ojalvo and Kristopher J. Seluga, both of which, for all practical purposes, contain parallel analyses of the issues alleged to have caused plaintiff's accident. These include: (1) defective design, i.e., the failure to install a [*8]safety button on the rear of the vehicle; (2) improper maintenance by the City; (3) the failure to repair or refill leaky hydraulic components controlling the "hopper"; (4) the likelihood that the "hopper" was accidentally activated by Hackett from inside the cab; and (5) the failure to install a device for emergency communication between the driver and the loader. In opposition, defendants rely upon their own experts, copies of all of the deposition testimony and documentary evidence. Where conflicting qualified expert opinions are offered the question of liability is usually one of fact for a jury to determine (Marie Pierre-Louis v. DeLonghi Am. Inc., 66 AD3d 859, 861-862). In the instant case, however, this Court is obliged to reject the opinions of plaintiffs' experts as speculative and legally insufficient to create a triable issue of fact for the following reasons. First, the Court notes that both case law and extensive experience with a vehicle of the same design throughout the United States and abroad combine to significantly undermine the opinion of plaintiffs' experts that the absence of a rear cut-off button is a cognizable safety or design defect upon which liability may be predicated. Secondly, notwithstanding their joint suggestion that Hackett may have inadvertently initiated the "hopper" cycle from inside the cab, this assertion is wholly inconsistent with the deposition testimony that such an occurrence is impossible (Messner E/B/T p 101). Third, all of the maintenance records for the vehicle in question simply do not support the theory that the accident was caused by an insufficient volume of oil in the hopper components resulting from improper maintenance, and neither does the post- accident inspection of this and other vehicles with identical "hoppers". Fourth, the opinion that the failure to include a communication device between the driver and loader constituted a design defect and was a substantial cause of the subject accident has no basis in the proof before the Court. The same is also true of the remaining opinions proffered by plaintiffs' experts, rendering their affidavits considered as a whole both speculative in nature and at variance with the competent evidence before this Court.

Based on all of the foregoing, it is the opinion of this Court that each of the defendants have established their prima facie right to judgment as a matter of law, and that plaintiffs have failed to raise a triable issue of fact in their opposing papers.

Accordingly, it is

ORDERED that defendants' motions are granted and the complaint is dismissed; and it is further

ORDERED that plaintiffs' motion for partial summary judgment on the issue of liability is denied as academic; and it is further

ORDERED that the Clerk enter judgment accordingly.

ENTER,

__________________

Hon. Thomas P. Aliotta

DATED: June 28, 2010J.S.C. Footnotes

Footnote 1:Heil maintains that the vehicle in question was reasonably suited for its intended use, but joins in plaintiffs' contention that the defense of governmental immunity is not available to the City in this action. In the alternative, Heil argues that any dismissal of plaintiffs' product liability claims against the City on the basis of governmental immunity should be applicable to immunize Heil, as well.

Footnote 2:UCC §2-318 extends a sellers express and implied warranties beyond the vendee "to any natural person if it is reasonable to expect that such person may use...or be affected by the goods and is injured in person by breach of the warranty."

Footnote 3:To the extent that maintenance inspections also involve the discretionary exercise of expert knowledge, they may also fall beneath the cloak of governmental immunity.