Evans v. Biro Manufacturing Co.

Appellate Division of the Supreme Court of New York

Evans v. Biro Manufacturing Co.

289 A.D.2d 187, 735 N.Y.S.2d 384, 2001 N.Y. App. Div. LEXIS 12841

Appellate Division of the Supreme Court of the State of New York·Decided December 27, 2001·Published

Opinion

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered September 28, 2000, which, in a products liability action, insofar as appealed from as limited by the briefs, denied defendant manufacturer’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The affidavit submitted by defendant’s president in support of the motion, which relies primarily on plaintiffs deposition testimony to show that the product in question was poorly maintained by plaintiffs employer and virtually “falling apart” by the time of the accident, simply does not address the safety of the product as designed, and is otherwise insufficient to shift to plaintiff the burden of coming forward with evidence of design defects (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; compare, Bouter v Durand-Wayland, Inc., 221 AD2d 902). Plaintiff did, however, supply such evidence through the affidavit of an expert witness. Concur — Rosenberger, J. P., Ellerin, Wallach, Rubin and Marlow, JJ.

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Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered September 28, 2000, which, in a products liability action, insofar as appealed from as limited by the briefs, denied defendant manufacturer’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The affidavit submitted by defendant’s president in support of the motion, which relies primarily on plaintiffs deposition testimony to show that the product in question was poorly maintained by plaintiffs employer and virtually “falling apart” by the time of the accident, simply does not address the safety of the product as designed, and is otherwise insufficient to shift to plaintiff the burden of coming forward with evidence of design defects (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; compare, Bouter v Durand-Wayland, Inc., 221 AD2d 902). Plaintiff did, however, supply such evidence through the affidavit of an expert witness. Concur — Rosenberger, J. P., Ellerin, Wallach, Rubin and Marlow, JJ.

Evans v. Biro Manufacturing Co., 289 A.D.2d 187, 735 N.Y.S.2d 384, 2001 N.Y. App. Div. LEXIS 12841 (N.Y. Ct. App. 2001).

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289 A.D.2d 187 (Evans v. Biro Manufacturing Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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