Opinion
2003-03589
Argued September 16, 2003.
November 3, 2003.
In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Nassau County (Jonas, J.), entered March 21, 2003, as denied those branches of the motion of the defendants American Honda Motor Company, Inc., and Liberty Chevrolet, Inc., d/b/a Bronx Honda, which were for summary judgment dismissing the causes of action to recover damages based on strict products liability, negligent manufacture, and negligence.
Lester Schwab Katz Dwyer, LLP, New York, N.Y. (Harold Lee Schwab and Steven B. Prystowsky of counsel), for appellants.
Before: A. GAIL PRUDENTI, P.J., NANCY E. SMITH, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the appeals by the defendants Honda North America, Inc., and Honda Motor Co., Ltd., are dismissed, without costs or disbursements, as those defendants are not aggrieved by the order appealed from ( see CPLR 5511); and it is further,
ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the cause of action to recover damages based upon negligent manufacture and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.
On February 19, 1994, the plaintiff's decedent died in an automobile fire. The decedent was apparently passed out inside the idling vehicle, a 1987 Honda Civic CRX, when a fire started in the engine compartment and engulfed the car. The defendant American Honda Motor Company, Inc., was a distributor of Honda vehicles throughout the country, and the defendant Liberty Chevrolet, Inc., d/b/a Bronx Honda, was an authorized Honda dealer (hereinafter collectively the defendants).
The Supreme Court correctly determined that the plaintiff's expert had the requisite experience to render an opinion as to the design of the vehicle's engine compartment and as to the origin of the fire ( see Caprara v. Chrysler Corp., 52 N.Y.2d 114; Matott v. Ward, 48 N.Y.2d 455).
Although the defendants made a prima facie showing that the subject vehicle was not defective ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320), the Supreme Court correctly determined that the affidavit of the plaintiff's expert raised triable issues of fact with respect to a design defect ( see Denny v. Ford Motor Co., 87 N.Y.2d 248; Voss v. Black Decker Mfg. Co., 59 N.Y.2d 102; see generally Zuckerman v. City of New York, 49 N.Y.2d 557).
However, the plaintiff failed to raise a triable issue of fact with respect to negligent manufacture. In opposition to the defendants' motion, the plaintiff submitted no evidence that the vehicle had not performed as intended due to a flaw in the fabrication process. Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages based upon negligent manufacture.
The defendants' remaining contentions are without merit.
PRUDENTI, P.J., SMITH, FRIEDMANN and H. MILLER, JJ., concur.