FISHER v. ALEXANDER FIDEN MACHINERY CO INC (1997)

 Supreme Court properly denied the motions of defendant and third-party defendants for summary judgment.   They met their initial burden, and plaintiff raised material issues of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Plaintiff, an employee of third-party defendant Colgate Plastics Corp., was injured while operating a drill press manufactured by third-party defendant Buffalo Forge Co. (Buffalo Forge) and sold to her employer by defendant.   We reject the contention of defendant that, because it merely sold the used drill press and did not manufacture or design it, it cannot be held liable (see, Sukljian v. Charles Ross & Son Co., 69 N.Y.2d 89, 95-96, 511 N.Y.S.2d 821, 503 N.E.2d 1358;  Stiles v. Batavia Atomic Horseshoes, 174 A.D.2d 287, 579 N.Y.S.2d 790, revd. on other grounds 81 N.Y.2d 950, 597 N.Y.S.2d 666, 613 N.E.2d 572, rearg. denied 81 N.Y.2d 1068, 601 N.Y.S.2d 586, 619 N.E.2d 664).   Furthermore, it cannot be determined on this record that, as a matter of law, the danger from the drill press was open and obvious and thus that no warnings were necessary (see, Oliver v. NAMCO Controls, 161 A.D.2d 1188, 1189, 556 N.Y.S.2d 430).   The contention of Buffalo Forge that the claims against it must be dismissed for failure to preserve the drill press is not supported by the record;  there is no indication in the record that the machine is no longer available for inspection.   Furthermore, there are numerous photographs and diagrams of the drill press.   In any event, the unavailability of the equipment would not be dispositive;  “the existence of a product defect as well as the identity of the manufacturer of the product are issues of fact capable of proof by circumstantial evidence” (Bauer v. Bashline Indus., 219 A.D.2d 841, 842, 632 N.Y.S.2d 341, quoting Otis v. Bausch & Lomb, 143 A.D.2d 649, 650, 532 N.Y.S.2d 933).   Finally, there is no proof in the record that the use of the drill press with a router bit to remove a plastic nub is a misuse of the machine or an unforeseeable use (cf., Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571).

Order unanimously affirmed without costs.

MEMORANDUM: