| Rodriguez v Ford Motor Co. |
| 2009 NY Slip Op 04011 [62 AD3d 573] |
| May 21, 2009 |
| Appellate Division, First Department |
| Alida Rodriguez, Appellant, v Ford Motor Company,Respondent, et al, Defendants. |
—[*1] Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York (Elliot J. Zucker of counsel),for respondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 15, 2007, whichdenied plaintiff's motion to restore the case to the trial calendar, and granted defendant FordMotor Company's cross motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, plaintiff's motion granted and Ford's cross motion denied.
Plaintiff originally based her products liability claim against Ford on a "transient signal"theory postulating that the Ford vehicle that struck her had a design defect by whichelectromagnetic signals from unknown sources and for unknown reasons caused the vehicle'scruise control to fully open the throttle, in turn causing the vehicle to suddenly acceleratewithout the driver manipulating the gas pedal, and also causing the steering and brakes to stopfunctioning. The trial court, after a lengthy Frye hearing (see Frye v UnitedStates, 293 F 1013 [DC Cir 1923]), precluded this theory on the ground that it has nosupport in the scientific community, and also precluded plaintiff's expert. At plaintiff's request,the trial court then removed the case from the trial calendar pending plaintiff's appeal. After theappeal was dismissed (17 AD3d 159 [2005]), plaintiff sought to restore the case to the calendar,asserting that she would proceed against Ford on a negligence theory based on circumstantialevidence. Ford opposed the motion and cross-moved for summary judgment. The court deniedplaintiff's motion to restore and granted Ford's cross motion for summary judgment, finding thatplaintiff's circumstantial evidence theory "is inextricably intertwined with, and dependent upon,the precluded theory of 'transient signals.' "
Preliminarily, the court properly considered Ford's cross motion since good cause existed forFord's delay in making it (CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]), namely, theeve-of-trial order precluding plaintiff's then sole transient-signal theory of liability, as well as herexpert, and the subsequent unsuccessful appeal. Further, the motion practice that resulted indismissal began with plaintiff seeking to restore the action to the calendar; Ford's [*2]motion for summary judgment was, in effect, merely opposition tothat motion. While Ford should have attached a copy of the pleadings to its cross motion (CPLR3212 [b]), the defect was properly overlooked (see Breytman v Olinville Realty, LLC, 46 AD3d 484, 485 [2007],lv dismissed in part and denied in part 11 NY3d 768 [2008]).
"In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff mustprove that the product did not perform as intended and exclude all other causes for the product'sfailure that are not attributable to defendants" (Speller v Sears, Roebuck & Co., 100NY2d 38, 41 [2003]). Assuming, without deciding, that Ford met its initial burden, thus shiftingthe burden to plaintiff to come forward with competent evidence tending to show that the driver,Nyiri, was not intoxicated or negligent, we hold that plaintiff did come forward with suchevidence, specifically, Nyiri's deposition testimony that he had only had one glass of wine in anhour and a half and was not intoxicated, that the car accelerated when he put it in reverse withoutstepping on the gas, and that the steering wheel froze and the brakes did not work. Thistestimony suffices to raise a triable issue of fact since, if credited, the jury could conclude thatthe vehicle did not perform as intended and that plaintiff excluded all other causes of theaccident not attributable to Ford (see Speller, 100 NY2d at 44; Jarvis v Ford MotorCo., 283 F3d 33, 46 [2d Cir 2002], cert denied 537 US 1019 [2002]).Concur—McGuire, J.P., Acosta, DeGrasse, Richter and Abdus-Salaam, JJ.