MARK FEGLEY AND SHERRY FEGLEY PLAINTIFFS APPELLANTS RESPONDENTS v. THE RAYMOND CORPORATION AND ABEL WOMACK INC DEFENDANTS RESPONDENTS APPELLANTS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion with respect to the product liability / design defect claims related to the absence of a rear guard or door on the operator compartment and reinstating those claims and as modified the order is affirmed without costs.

Memorandum: In this products liability action, Mark Fegley (plaintiff) was injured while operating a reach truck, a type of electric forklift, in a grocery warehouse. The reach truck was sold by defendant Abel Womack, Inc., a dealer for defendant The Raymond Corporation, which manufactured the truck. Plaintiffs allege that, while plaintiff was operating it, the reach truck suddenly lost power, turned in front of another reach truck, and collided with it, crushing plaintiff's left lower leg.

Plaintiffs appeal from an order insofar as it granted in part defendants’ motion for summary judgment dismissing the complaint and dismissed the portion of plaintiffs’ product liability / design defect claims based on the absence of a rear guard or door on the operator compartment of the reach truck plaintiff was operating. Defendants cross-appeal from the same order insofar as it denied defendants’ motion with respect to the portion of plaintiffs’ design defect claims based on an alleged faulty steering mechanism in the reach truck.

We agree with plaintiffs on their appeal that Supreme Court erred in dismissing the portion of plaintiffs’ design defect claims based on the absence of a rear guard or door, which was an optional feature on the reach truck. A product that lacks an optional safety feature is not defectively designed if “(1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer's use of the product” (Scarangella v Thomas Built Buses, 93 NY2d 655, 661 [1999] [emphasis omitted]).

On the record before us, we conclude that it cannot be determined as a matter of law that the purchaser of the reach truck was “actually aware” of the optional safety feature and elected not to purchase it (id.; see generally Campbell v International Truck & Engine Corp., 32 AD3d 1184, 1185 [4th Dept 2006]). Inasmuch as defendants failed to meet their initial burden on the first Scarangella factor, we need not address the second or third factors (see Mariani v Guardian Fences of WNY, Inc., 194 AD3d 1380, 1381 [4th Dept 2021]; see also Passante v Agway Consumer Prods., Inc., 12 NY3d 372, 381-382 [2009]). We thus modify the order by denying the portion of defendants’ motion that sought dismissal of the product liability / design defect claims related to the absence of a rear guard or door on the operator compartment and reinstating those claims.

Contrary to defendants’ contention on their cross-appeal, the court properly declined to dismiss the part of plaintiffs’ product liability / design defect claims based on an alleged faulty steering mechanism in the reach truck. Defendants’ initial motion papers did not include any contention regarding the steering system; defendants addressed that issue for the first time in their reply submissions. “[T]he function of [reply papers] is to address arguments made in opposition to the position taken by the movant[s] and not to permit [them] to introduce new arguments in support of the motion” (Paul v Cooper, 45 AD3d 1485, 1486 [4th Dept 2007] [internal quotation marks omitted]; see Wonderling v CSX Transp., Inc., 34 AD3d 1244, 1245 [4th Dept 2006]; Seefeldt v Johnson, 13 AD3d 1203, 1203-1204 [4th Dept 2004]).

We have reviewed the parties’ remaining contentions and conclude that none warrants further modification or reversal of the order.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court