| Wallace v Sitma U.S.A., Inc. |
| 2010 NY Slip Op 07744 [77 AD3d 918] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Curtis Wallace, Respondent, v Sitma U.S.A., Inc.,Appellant. |
—[*1]
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Schmidt, J.), dated June 2, 2009, which denied its motion forsummary 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 granted.
The defendant established its prima facie entitlement to judgment as a matter of lawdismissing the plaintiff's cause of action alleging that he was injured as a result of amanufacturing defect in the machine he was operating, by demonstrating that the product was notdefective when it left its control (seeMincieli v Pequa Indus., Inc., 56 AD3d 627 [2008]; Sabessar v Presto Sales & Serv., Inc., 45 AD3d 829 [2007]). Inopposition, the plaintiff failed to raise a triable issue of fact. The plaintiff failed to come forwardwith competent evidence demonstrating that the product had a specific flaw which caused theaccident or, in the alternative, demonstrating that the machine did not perform as intended whileexcluding all possible causes for the malfunction not attributable to the defendant (see Spellerv Sears, Roebuck & Co., 100 NY2d 38, 42 [2003]; Riglioni v Chambers Ford Tractor Sales, Inc., 36 AD3d 785, 786[2007]; D'Auguste v Shanty HollowCorp., 26 AD3d 403, 404 [2006]).
Further, the defendant established prima facie that the machine was not defectively designed,and it satisfied its duty to warn of latent dangers of the product. In opposition, the plaintiff reliedupon an unsworn engineer's report, which was not competent proof of the assertions made therein(see Peters v Colwell, 61 AD3d729, 731 [2009]). The plaintiff's submissions failed to raise a triable issue of fact as towhether the safety devices of the machine could be disabled without a material alteration of it(see Lopez v Precision Papers, 67 NY2d 871 [1986]; Robinson v Reed-Prentice Div.of Package Mach. Co., 49 NY2d 471, 481 [1980]), or that the defendant violated any duty towarn.
The defendant also established its entitlement to judgment as a matter of law dismissing thecauses of action alleging a breach of an express warranty and a breach of an implied warranty,and the plaintiff failed to raise a triable issue of fact in opposition thereto (see Denny v FordMotor Co., 87 NY2d [*2]248, 259 [1995]; Davis v NewYork City Hous. Auth., 246 AD2d 575, 576 [1998]).
The plaintiff's remaining contentions are without merit or need not be addressed in light ofour determination. Fisher, J.P., Santucci, Eng and Sgroi, JJ., concur.