| L.M.B. v Sevylor USA, Inc. |
| 2007 NY Slip Op 07161 [43 AD3d 1355] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| L.M.B., an Infant, by Her Parents and Natural Guardians, WilliamBernardelli and Another, et al., Respondents, v Sevylor USA, Inc., et al.,Appellants. |
—[*1] Greene & Reid, LLP, Syracuse (James E. Reid of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.),entered October 11, 2006 in a products liability action. The order denied defendants' motion forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Plaintiffs commenced this products liability action seeking damages forinjuries sustained by plaintiff daughter (hereafter, plaintiff) when she fell from an "inflatablerecreational water tube" (hereafter, water tube) as it was towed behind a boat operated byplaintiff William Bernardelli, plaintiff's father. We conclude that Supreme Court properly denieddefendants' motion for summary judgment dismissing the complaint. Although plaintiffs alleged,inter alia, that plaintiff's injuries were caused by defendants' defective design and manufacture ofthe water tube, defendants failed to submit evidence in support of their motion establishing thatthe water tube was not defective, nor did they even contend that it was not defective. Rather,defendants contended that there were other likely causes of plaintiff's injuries, such as the towrope or debris in the water. To meet their burden on the motion, defendants were required to "'tender . . . evidentiary proof in admissible form' " establishing as a matter of lawthat the allegedly defective water tube was not a proximate cause of plaintiff's injuries(Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Speller v Sears,Roebuck & Co., 100 NY2d 38, 42 [2003]; cf. Ramirez v Miller, 29 AD3d 310, 313 [2006]), and they failed to doso. Indeed, they failed to submit any evidence to support their theory that plaintiff's injuries werecaused by something other than the water tube (cf. Speller, 100 NY2d at 42). Defendantscannot meet their burden merely by " 'noting gaps in [their] opponent[s'] proof' " (Giangrosso v Kummer Dev. Corp., 8AD3d 1037, 1038 [2004]). The burden of proof therefore never shifted to plaintiffs, and wethus do not consider the adequacy of plaintiffs' submissions in opposition to defendants' motion(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).Present—Hurlbutt, J.P., Martoche, Smith, Lunn and Peradotto, JJ.