HIPPNER v. SALOMON NORTH AMERICA INC (2002)

Supreme Court, Appellate Division, Second Department, New York.

Ernest HIPPNER, et al., Respondents, v. SALOMON/NORTH AMERICA, INC., et al., Appellants.

Decided: February 11, 2002

NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT and BARRY A. COZIER, JJ.

Chesney & Murphy, LLP, Baldwin, N.Y. (Gregory E. Brower of counsel), for appellants. Lipsig, Shapey, Manus & Moverman, P.C. (Thomas J. Moverman and Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Julie T. Mark and Brian J. Isaac] of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated June 25, 2001, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Ernest Hippner (hereinafter the plaintiff) fell and sustained injuries to his left leg skiing while using new equipment purchased from or manufactured by the defendants. The Supreme Court correctly denied the defendants' motion for summary judgment.

The defendants failed to make a prima facie showing of entitlement to judgment as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718), since issues of fact exist concerning the validity of the release agreement signed by the plaintiff, the effectiveness of the ski boot bindings, their ability to release during a fall, and the plaintiff's awareness of the consequences of the bindings' new release setting.

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