Livolsi v. Batterson

164 A.D.2d 970

Opinion

Order unanimously reversed on the law with costs, motion denied and cross motion granted. Memorandum: In this product liability action based upon a design defect, Supreme Court erred in staying defendant Harley-Davidson Motor Company, Inc.’s motion for summary judgment pending disclosure of postaccident raw data generated by defendant’s 1989 safety guard testing program. The discovery sought was not " 'material and necessary’ ” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406). The postaccident test data would be relevant only if it were related to the technology of the industry at the time of manufacture (see, Rainbow v Elia Bldg. Co., 79 AD2d 287, affd 56 NY2d 550; Bolm v Triumph Corp., 71 AD2d 429, lv dismissed sub nom. Bolm v Birmingham Small Arms, 50 NY2d 801). Plaintiff failed to demonstrate any nexus between the data sought to be disclosed and the technology of the industry at the time the motorcycle was manufactured. (Appeal from order of Supreme Court, Erie County, Flaherty, J.—summary judgment.) Present—Dillon, P. J., Callahan, Green, Balio and Lowery, JJ.