| Hutchinson v Crown Equip. Corp. |
| 2008 NY Slip Op 01112 [48 AD3d 421] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Anthony Hutchinson et al., Respondents, v CrownEquipment Corp. et al., Appellants, et al., Defendant. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Kathleen D. Foley of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants Crown EquipmentCorp. and Crown Credit Company appeal from an order of the Supreme Court, Suffolk County(Molia, J.), dated November 9, 2005, which denied their motion in limine to preclude theplaintiff from introducing expert testimony on the theory of defective design with respect to thelack of a compartment door and for summary judgment dismissing the complaint as predicatedupon that theory of liability insofar as asserted against them, and denied their separate motionseeking the same relief insofar as it relates to the theory of defective design with respect to thebraking system.
Ordered that the order is affirmed, with costs.
The plaintiff Anthony Hutchinson was injured while working on a forklift manufactured bythe defendant Crown Equipment Corp., and leased to his employer by the defendant CrownCredit Company (hereinafter collectively the Crown defendants). He and his wife, the plaintiffDenise Hutchinson, brought this action asserting claims, inter alia, of design defect and productsliability. The plaintiffs sought to prove the existence of a design defect through the testimony ofan expert who was of the opinion that the forklift should have been equipped with a compartmentdoor which would have prevented the plaintiff Anthony Hutchinson from being ejected from theforklift at the time of the accident, and that its braking system was defectively designed as it didnot employ[*2]"redundancy and/or failsafe circuitry."
The Crown defendants moved to preclude the testimony of the plaintiffs' expert, oralternatively, for a Frye hearing (see Frye v United States, 293 F 1013 [1923]),and also moved for summary judgment dismissing the complaint insofar as asserted againstthem. The Supreme Court did not improvidently exercise its discretion in determining that theplaintiffs' expert witness was qualified to testify (see Pignataro v Galarzia, 303 AD2d667 [2003]). Moreover, under the facts of this case, the plaintiffs' expert's conclusions as to thelack of a compartment door and the defective design of the braking system were not based onnovel theories and did not warrant a preliminary Frye-type hearing (see Parker v Crown Equip. Corp., 39AD3d 347 [2007]; see also Frye v United States, 293 F 1013 [1923]).
In response to the prima facie showing of entitlement to judgment as a matter of law by theCrown defendants, the plaintiffs' expert's affidavit sufficiently raised issues of fact concerningboth the lack of a compartment door and the allegedly defective braking system. Therefore, theSupreme Court properly denied the Crown defendants' motions for summary judgmentdismissing the complaint insofar as asserted against them (see Milazzo v Premium Tech. Servs. Corp., 7 AD3d 586 [2004]).
The Crown defendants' remaining contentions are without merit. Fisher, J.P., Santucci,Lifson and Covello, JJ., concur.