| Fredette v Town of Southampton |
| 2012 NY Slip Op 03595 [95 AD3d 940] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Lee Adam Fredette, Appellant-Respondent, v Town ofSouthampton, Respondent, and Honda Motor Co., Ltd., et al., Respondents-Appellants, et al.,Defendants. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harold Lee Schwab and HarrySteinberg of counsel), for respondents-appellants Honda Motor Co., Ltd., and American HondaMotor Co., Inc. Peter J. Madison, New York, N.Y., for respondent-appellant Long Island Cycle & Marine,Inc. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief and reply brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.),dated May 25, 2010, as granted the motion of the defendant Town of Southampton for summaryjudgment dismissing the complaint insofar as asserted against it, the defendants Honda MotorCo., Ltd., and American Honda Motor Co., Inc., cross-appeal from so much of the same order asdenied those branches of their motion which were for summary judgment dismissing so much ofthe first and third causes of action insofar as asserted against them as alleged defective designand manufacturing, negligent entrustment, and failure to warn, and the defendant Long IslandCycle & Marine, Inc., separately cross-appeals from so much of the same order as denied itsmotion for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the motions of the defendants Honda Motor Co., Ltd., and American HondaMotor Co., Inc., and the separate motion of the defendant Long Island Cycle & Marine, Inc.,which were for summary judgment dismissing so much of the first and third causes of actioninsofar as asserted against them as alleged defective design and manufacture, negligententrustment, and failure to warn, and substituting therefor provisions granting those branches ofthe motions; as so modified, the order is affirmed insofar as appealed and cross-appealed from,without costs or disbursements.[*2]
The Supreme Court properly granted the motion of theTown of Southampton for judgment as a matter of law dismissing the complaint insofar asasserted against it, as it was immune from liability pursuant to General Obligations Law §9-103. The Town established its prima facie entitlement to summary judgment by showing that itowned the property at which the underlying accident occurred, that the plaintiff was engaged in arecreational activity specified by the statute, and that the property was suitable for thatrecreational use (see Finnocchiaro vNapolitano, 52 AD3d 463 [2008]; Morales v Coram Materials Corp., 51 AD3d 86 [2008]). Theproperty was suitable for the activity—off-road motorcycling—as a matter of law, asit was not only physically conducive to that activity, but is also a type of property which wouldbe appropriate for public use in pursuing that activity as recreation (see Albright v Metz,88 NY2d 656, 662 [1996]; Bragg v Genesee County Agric. Socy., 84 NY2d 544, 548[1994]; Iannotti v Consolidated Rail Corp., 74 NY2d 39, 45 [1989]; Morales v Coram Materials Corp., 51AD3d 86 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact.
Contrary to the Supreme Court's determination, Honda Motor Co., Ltd., and AmericanHonda Motor Co., Inc. (hereinafter together Honda), and Long Island Cycle & Marine, Inc.(hereinafter LICM), each established their prima facie entitlement to judgment as a matter of lawdismissing so much of the first cause of action insofar as asserted against each of them as allegednegligent entrustment. There is no evidence that Honda or LICM had any special knowledgeconcerning a characteristic or condition peculiar to the plaintiff which rendered his use of amotorcycle unreasonably dangerous, or any special knowledge as to a characteristic or defectpeculiar to the motorcycle which rendered it unreasonably dangerous (see Byrne v Collins, 77 AD3d 782[2010]; Cook v Schapiro, 58 AD3d664 [2009]; Troncoso v Home Depot, 258 AD2d 644 [1999]). In opposition, theplaintiff failed to raise a triable issue of fact.
The Supreme Court erred in denying those branches of the motions of Honda and LICMwhich were for summary judgment dismissing so much of the first and third causes of actioninsofar as asserted against them as alleged a failure to warn of a particular danger. While theSupreme Court properly determined that the affirmation of Yasuyuke Tsurumi was not notarizedand was otherwise inadmissible as evidence (see Zuckerman v City of New York, 49NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067[1979]) and also properly rejected the affidavit of Honda's expert, John Frackleton, as lackingprobative value since it failed to demonstrate that Frackleton was qualified to render an expertopinion (see Pellechia v PartnerAviation Enters., Inc., 80 AD3d 740, 741 [2011]; de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 518 [2007];Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296 [2000]), it improvidentlyexercised its discretion in excluding from consideration the affidavits of Ken Glaser and KrisKubly on the ground that the affidavits, while notarized, were not accompanied by a certificate ofconformity required by CPLR 2309 (c). This Court has previously held that the absence of acertificate of conformity for an out-of-state affidavit is not a fatal defect (see Smith v Allstate Ins. Co., 38 AD3d522, 523 [2007]), a view shared by the Appellate Division, First and Third Departments aswell (see Matapos Tech. Ltd. vCompania Andina de Comercio Ltda, 68 AD3d 672 [1st Dept 2009]; Sparaco vSparaco, 309 AD2d 1029, 1031 [3d Dept 2003]; Nandy v Albany Med. Ctr. Hosp.,155 AD2d 833 [3d Dept 1989]; see also Connors, Practice Commentaries, McKinney'sCons Laws of NY, Book 7B, CPLR C2309:3).
Upon considering the affidavits of Glaser and Kubly and other admissible evidence, weconclude that Honda, as well as LICM, which relied, in large part, upon Honda's submissions,established their prima facie entitlement to judgment as a matter of law dismissing so much ofthe first and third causes of action insofar as asserted against them as alleged failure to warn. Inopposition, the plaintiff failed to raise a triable issue of fact. The plaintiff conceded in hisdeposition testimony that he had "just looked through" the motorcycle's manual without recallingany particular pages or entries and, therefore, cannot have relied upon any particular warningsthat might be proximately related to a failure-to-warn cause of action (see Sosna v AmericanHome Prods., 298 AD2d 158 [2002]; see also Perez v Radar Realty, 34 AD3d 305, 306 [2006];Guadalupe v Drackett Prods. Co., 253 AD2d 378 [1998]). However, the plaintiff'saffidavit in opposition, sworn to more than two years after his deposition, asserts that he had seenthe manual's front cover many times and read pages 2 through 7 and most of the service andmaintenance section at pages 11 through 31. We reject this contradictory sworn statement, as wefind it to have been tailored to avoid the consequences of the plaintiff's earlier depositiontestimony (see Sosna v American Home Prods., 298 AD2d at 158; see [*3]alsoThompson v Commack Multiplex Cinemas, 83 AD3d 929, 930 [2011]; Smith v Costco Wholesale Corp., 50AD3d 499, 501 [2008]).
This Court held in Johnson v Johnson Chem. Co. (183 AD2d 64 [1992]) that evenwhere a plaintiff fails to read warnings altogether, there may still be a viable cause of actionbased on the inadequacy of the warnings themselves, as the sufficiency of warnings is not limitedto what is warned but also includes consideration of the intensity of the language used and theprominence of its display (id. at 70). The adequacy of warnings is usually a question offact (see Nagel v Brothers Intl. Food,Inc., 34 AD3d 545 [2006]; Haight v Banner Metals, 300 AD2d 356 [2002]).Here, the plaintiff's evidence establishes that he had at least perused the manual. To the extentthat the plaintiff's first and third causes of action allege the inadequacy of warnings, the plaintiffattempts in his submissions to raise issues regarding the adequacy, intensity, and prominence ofwarnings and instructions concerning the avoidance of hazards, the rider's positioning on themotorcycle, and the pre-inspection of riding areas. However, the plaintiff testified at his hearingpursuant to General Municipal Law § 50-h and his deposition that during his inbound tripon the trail, he observed a pile of leaves across his path and, without slowing or applying brakes,drove around the pile. He was therefore consciously aware of the hazard and chose, at that time,to avoid it entirely. It was on the return trip that the plaintiff, aware of the leaf pile, chose to drivethrough it. Under these circumstances, the plaintiff failed to raise a triable issue of fact as towhether the alleged inadequacy of warnings regarding the avoidance of hazards and thepre-inspection of riding areas was a competent producing cause of the occurrence (see StalkerGoodyear Tire & Rubber Co., 60 AD3d 1173, 1175-1176 [2009]; Secone v RaymondCorp., 240 AD2d 391, 392 [1997]).
There is no merit to the plaintiff's contention, in the context of his argument that there wereinadequate warnings, that Vehicle and Traffic Law §§ 1251 and 2404 prohibit ridersfrom standing upon foot pegs during off-road riding. Those statutes merely prohibit more personsfrom riding on a motorcycle or all-terrain vehicle (hereinafter ATV) than there are attached seatsavailable for them, and require that each motorcycle or ATV seat be permanently and regularlyattached to the bike (see 1957 Revision Note, McKinney's Cons Laws of NY, Book 62A,Vehicle and Traffic Law § 1212 [now codified in § 1251 (a)], at 627 [1960 ed]).Neither statute prohibits ATV riders from ever standing upon foot pegs as may be necessary tomaintain stability and control of the vehicle on rough, off-road terrain.
In light of the fact that the plaintiff's counsel informed the Supreme Court that the plaintiffdid not intend to continue to prosecute the causes of action alleging defective design andmanufacture of the subject motorcycle, the Supreme Court should have granted those branches ofthe motions of Honda and LICM which were for summary judgment dismissing so much of thefirst and third causes of action insofar as asserted against them as alleged strict products liabilitybased on defective design and manufacture.
The parties' remaining contentions either are without merit or have been rendered academicby our determination. Dillon, J.P., Belen, Roman and Miller, JJ., concur. [Prior CaseHistory: 2010 NY Slip Op 31451(U).]