Koslow v Zenith Electronics Corp.

2007 NY Slip Op 09365 [45 AD3d 810]

November 27, 2007

Appellate Division, Second Department

As corrected through Wednesday, January 16, 2008

Larry Koslow et al., Appellants, v Zenith ElectronicsCorporation, Respondent.

—[*1]Gennet, Kallmann, Antin & Robinson, P.C., New York, N.Y. (Mark L. Antin ofcounsel), for appellants.

Canter Law Firm, P.C., White Plains, N.Y. (Nelson E. Canter of counsel), forrespondent.

In an action to recover damages based on strict products liability, the plaintiffs appeal from anorder of the Supreme Court, Nassau County (O'Connell, J.), dated December 22, 2005, whichgranted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.

The Supreme Court erred in granting the defendant's motion for summary judgment, as thedefendant failed to meet its initial burden of establishing its prima facie entitlement to judgmentas a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Specifically, the defendant failed to establish that the subject product performed as intended orthat there existed a likely cause of the accident not attributable to any defect in the design ormanufacturing of the product (see Speller v Sears, Roebuck & Co., 100 NY2d 38, 41[2003]; D'Auguste v Shanty HollowCorp., 26 AD3d 403, 404-405 [2006]; Milazzo v Premium Tech. Servs. Corp., 7 AD3d 586, 588 [2004]).As the defendant failed to establish its prima facie entitlement to judgment as a matter of law, weneed not consider the sufficiency of the opposing papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Prudenti, P.J., Fisher, Carni and McCarthy, JJ.,concur.