AGHABI v. Bestop, Inc., Respondent. (1998)

In an action to recover damages for personal injuries based, inter alia, upon strict products liability, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), dated September 23, 1997, as granted the motion of the defendant Bestop, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The evidence submitted by the defendant Bestop, Inc. (hereinafter Bestop) demonstrated that the soft top which it manufactured and which was installed on the plaintiff's vehicle, was not defectively designed, and fulfilled its intended purpose of protecting the occupants of the vehicle from the weather (see, Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 532, 569 N.Y.S.2d 337, 571 N.E.2d 645;  Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 103, 463 N.Y.S.2d 398, 450 N.E.2d 204).   Contrary to the plaintiff's contention, Bestop made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence demonstrating an absence of any material issue of fact (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Porter v. Uniroyal Goodrich Tire Co., 224 A.D.2d 674, 638 N.Y.S.2d 702).   The bare conclusory assertions contained in the affidavit of the plaintiff's expert, which consisted primarily of speculative allegations with no independent factual basis, were insufficient to raise a triable issue of fact and defeat Bestop's motion for summary judgment (see, Amatulli v. Delhi Constr. Corp., supra, at 533, 569 N.Y.S.2d 337, 571 N.E.2d 645).

 There was no liability for failure to warn where, as here, the dangers of a soft top on a vehicle are open and obvious and a warning label was affixed to the roof of the vehicle and repeated on the cover of the owner's manual (see, Secone v. Raymond Corp., 240 A.D.2d 391, 658 N.Y.S.2d 1021).

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.