Birriel v. F.L. Smithe Machine Co.

99 A.D.3d 480, 952 N.Y.2d 34

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 2012
• Status: Published

Opinion

In this action alleging strict products liability, negligent design, and breach of the implied warranty, plaintiff, an employee of third-party defendant New York Envelope, was injured while operating an envelope-making machine manufactured by defendant F.L. Smithe Machine Co. that was substantially materially altered post manufacture (see Birriel v F.L. Smithe Mach. Co., Inc., 23 AD3d 205 [1st Dept 2005]). Smithe met its burden of establishing that the machine was originally safe as manufactured, with an appropriate and difficult-to-remove safety feature installed, and that it neither performed nor authorized the alteration of the machine’s safety mechanism (see Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 480-481 [1980]; Barnes v Pine Tree Mach., 261 AD2d 295 [1st Dept 1999]).

In opposition, plaintiff failed to raise an issue of fact. Plaintiff’s speculation that Smithe either performed or was aware of the alteration is unsupported by the record and insufficient to defeat summary judgment.

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Tom, J.P, Mazzarelli, Catterson, Renwick and DeGrasse, JJ.