| Simpson v Trace Equip. Corp. |
| 2009 NY Slip Op 01043 [59 AD3d 1140] |
| February 11, 2009 |
| Appellate Division, Fourth Department |
| Peter Simpson, Respondent, v Trace Equipment Corporation,Appellant and Third-Party Plaintiff. Pallets Plus, Inc., Third-PartyDefendant-Appellant. |
—[*1] Stockton, Barker & Mead, LLP, Albany (Robert S. Stockton of counsel), for third-partydefendant-appellant. Lotempio & Brown, P.C., Buffalo (Patrick J. Brown of counsel), forplaintiff-respondent.
Appeals from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), enteredApril 21, 2008 in a personal injury action. The order denied the motion of defendant for leave tomake a late motion for summary judgment and for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the claim for failure to warn and as modified the orderis affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen his hand came into contact with the blades of an economy notcher sold by defendant andthird-party plaintiff, Trace Equipment Corporation (Trace), to plaintiff's employer, third-partydefendant, Pallets Plus, Inc. (Pallets). A note of issue was filed on December 5, 2007 and, byletter dated January 3, 2008, Trace and Pallets were notified that the matter had been assigned toa specified justice. Included with that letter was a copy of the Justice's local rules, one of whichwas that "[s]ummary judgment motions must be made within thirty days following filing of thenote of issue." Trace and Pallets did not receive the letter and accompanying local rules untilJanuary 7, 2008, at which time the deadline for moving for summary judgment had alreadyexpired. Trace moved for leave to make a late motion for summary judgment and for [*2]summary judgment dismissing the complaint, and Pallets joined inthe motion. We conclude that Supreme Court abused its discretion in denying that part of themotion seeking leave to make a late motion for summary judgment inasmuch as Traceestablished that it would have been impossible for it to comply with the court's truncateddeadline. We therefore modify the order accordingly. In our view, Trace "provided a 'satisfactoryexplanation for the untimeliness' of the proposed summary judgment motion and thereforeestablished good cause for the delay in making the motion" (Cooper v Hodge, 13 AD3d 1111, 1112 [2004], quoting Brill v City of New York, 2 NY3d648, 652 [2004]; see CPLR 3212 [a]).
We conclude that plaintiff has abandoned the claim for failure to warn. Plaintiff failed tooppose that part of the motion seeking summary judgment dismissing that claim and, indeed, heconcedes that he is no longer pursuing such a claim. We therefore further modify the orderaccordingly. We conclude, however, that Trace failed to establish its entitlement to summaryjudgment dismissing the claim for design defect inasmuch as Trace failed to establish that theeconomy notcher "met all applicable industry standards for safety and was reasonably safe for itsintended use when it was manufactured" (Gian v Cincinnati Inc., 17 AD3d 1014, 1016 [2005]; cf. Wesp v Carl Zeiss, Inc., 11 AD3d965, 967 [2004]). In addition, Trace failed to establish that the actions of plaintiff were thesole proximate cause of his injuries. The evidence submitted by Trace in support of its motionraises triable issues of fact concerning the circumstances in which plaintiff's hand came intocontact with the blades of the economy notcher (cf. Donuk v Sears, Roebuck & Co., 52 AD3d 456 [2008]; Amaya v L'Hommedieu, 6 AD3d638 [2004]). Present—Centra, J.P., Peradotto, Green and Pine, JJ.