ABULHASAN v. Goldring Motors Inc., Respondent, et al., Defendants.1 (1999)

Appeal from an order of the Supreme Court (Viscardi, J.), entered June 17, 1998 in Essex County, which, inter alia, denied defendant Uniroyal-Goodrich Tire Company's motion for summary judgment dismissing the complaint against it.

 On July 21, 1990, Dalila Abulhasan sustained serious personal injuries as the result of a motor vehicle accident that occurred in the Town of Elizabethtown, Essex County.   Because Abulhasan has remained in a coma since the time of the accident, plaintiff, Abulhasan's husband, commenced this action derivatively and on her behalf alleging, inter alia, that the accident was caused by the failure of a defective tire mounted on the vehicle in which she was riding and allegedly manufactured and distributed by defendant Uniroyal-Goodrich Tire Company (hereinafter UGTC).   Photographs of the remains of the sidewall of the offending tire depict the legends “ * * * Royal” and “Tiger Paw”.

Following joinder of issue, UGTC moved for summary judgment dismissing the complaint against it on the ground that plaintiff had failed to demonstrate that the tire involved in the accident was manufactured by UGTC. Plaintiff cross-moved for an order directing UGTC to respond to the discovery demands made in plaintiff's notice to produce.   Supreme Court denied UGTC's motion and granted plaintiff's cross motion, prompting this appeal.

We affirm, albeit for reasons somewhat different than those expressed by Supreme Court.   In support of its motion for summary judgment, UGTC proffered evidence in admissible form that the brand name “Uniroyal” is not unique to it and that UGTC is but one of several companies that utilize that brand name, as well as the brand “Tiger Paw” and “Tiger Paw Plus”. In opposition to the motion, plaintiff submitted the affidavit of an expert who opined that based upon his examination of the tread fragments of the tire involved in the accident, said tire was a Tiger Paw Plus manufactured by Uniroyal.   Whether purposefully or by oversight, the failure of the expert to identify the manufacturer as UGTC, as opposed to Uniroyal, is insufficient to raise a genuine issue of fact inasmuch as UGTC submitted evidence that at least three other companies-Uniroyal Ltd., Uniroyal Tire Ltd. and Uniroyal Goodrich Canada Inc.-manufacture Uniroyal brand “Tiger Paw” and “Tiger Paw Plus” tires.   What we are left with is the possibility, not the probability, that UGTC manufactured the tire in question (see, Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 603, 640 N.Y.S.2d 860, 663 N.E.2d 901).

 Nevertheless, we are satisfied that Supreme Court properly denied UGTC's motion and granted plaintiff's cross motion directing UGTC to comply with outstanding discovery demands, appropriately noting that once discovery is complete, summary judgment may be warranted.   With regard to UGTC's assertions that plaintiff's discovery requests are vague, ambiguous and overbroad, it suffices to note that UGTC made no motion for a protective order, nor did it raise those issues in opposition to plaintiff's cross motion before Supreme Court which, of course, precludes appellate review (see, General Elec. Tech. Servs. Co. v. Clinton, 173 A.D.2d 86, 89, 577 N.Y.S.2d 719, lv. denied 79 N.Y.2d 759, 584 N.Y.S.2d 447, 594 N.E.2d 941).

ORDERED that the order is affirmed, with one bill of costs.

CREW, III, J.

MIKOLL, J.P., and YESAWICH Jr., SPAIN and CARPINELLO, JJ., concur.