Opinion
2003-02946.
Decided April 26, 2004.
In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Belen, J.), dated February 23, 2003, as granted that branch of the motion of the third-party defendant which was for summary judgment dismissing the third-party complaint and as granted that branch of the separate motion of the defendant Juno Tool Plastic Corp., a/k/a Juno, Inc., which was for summary judgment dismissing all cross claims insofar as asserted against it.
Diamond, Cardo, King, Peters Fodera, New York, N.Y. (Deborah F. Peters of counsel), for defendant third-party plaintiff-appellant.
Jones Hirsch Connors Bull, P.C., New York, N.Y. (Steven H. Kaplan of counsel), for defendant-respondent.
Hoey, King, Toker Epstein, New York, N.Y. (Danielle M. Regan of counsel), for third-party defendant-respondent.
Before: HOWARD MILLER, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that order is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the respondents Juno Tool Plastic Corp., a/k/a Juno, Inc., and Clinton Industries, Inc.
Contrary to the contention of the defendant Efficiency Devices, Inc., (hereinafter Efficiency), the third-party defendant Clinton Industries, Inc. (hereinafter Clinton), and Juno Tool and Plastic Corp., a/k/a Juno, Inc. (hereinafter Juno), made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence demonstrating the absence of any material issue of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Aghabi v. Sebro, 256 A.D.2d 287). The evidence adduced by Juno and Clinton demonstrated that the fabric-cutting machine manufactured by Clinton and the blade guard manufactured by Juno were not defectively designed, and fulfilled their respective intended uses of cutting fabric and preventing an operator of the machine from placing his or her hand near its blade ( see Wallach v. American Home Prods. Corp., 300 A.D.2d 576; Martinez v. Roberts Consol. Indus., 299 A.D.2d 399; Aghabi v. Sebro, supra; Jemmott v. Rockwell Mfg. Co., Power Tools Divi., 216 A.D.2d 444). The guard was not of the type designed to be easily removed for convenience in using the machine ( see Wyda v. Makita Elec. Works, 232 A.D.2d 407; cf. Ayala v. V O Press Co., 126 A.D.2d 229). Moreover, Juno demonstrated that it manufactured the blade guard to Clinton's specifications, and that the design of neither the guard nor the assembled machine was inherently dangerous ( see Wager v. General Motors Corp., 236 A.D.2d 604; Lonigro v. TDC Elecs., 215 A.D.2d 534).
Clinton and Juno also demonstrated that Efficiency modified the guard after it left their possession by widening the clearance between the bottom of the guard and the cutting surface of the machine, and that the modification destroyed the utility and effectiveness of the guard as a safety feature, thus contributing to the accident ( see Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 475; Wyda v. Makita Elec. Works, supra).
In opposition, Efficiency submitted an expert affidavit which consisted primarily of conclusory and speculative allegations without any independent factual basis or any reference to results of testing or measurement, or to industry standards. The expert did not opine that the machine and guard were unreasonably dangerous, or proffer a safer alternative design. Thus, the affidavit was insufficient to raise a triable issue of fact ( see Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533-534 n 2; Gonzalez v. Delta Intl. Mach. Corp., 307 A.D.2d 1020, 1021; Martinez v. Roberts Consol. Indus., supra; Ramirez v. Sears, Roebuck Co., 286 A.D.2d 428, 429; Aghabi v. Sebro, supra).
Accordingly, the Supreme Court properly granted summary judgment to Clinton and Juno.
H. MILLER, J.P., LUCIANO, SCHMIDT and TOWNES, JJ., concur.