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

Peter EISS and Mary Eiss, Plaintiffs-Appellants, v. SEARS, ROEBUCK AND CO., Defendant-Respondent.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., GREEN, HAYES, KEHOE and LAWTON, JJ. John A. Collins, Buffalo, for plaintiffs-appellants. Kristen H. Martin, Albany, for defendant-respondent.

Plaintiffs commenced this action to recover damages for personal injuries sustained by plaintiff Peter Eiss as a result of the partial amputation of his finger while he was using a jointer/planer sold by defendant.   Plaintiffs appeal from an order granting defendant's motion for summary judgment dismissing the complaint but, as limited by their brief, challenge only the dismissal of their claims that the product was defectively designed.   Supreme Court erred in dismissing those claims, and thus we modify the order by denying that part of defendant's motion seeking dismissal of plaintiffs' causes of action for negligence and strict products liability insofar as they are based on claims of defective design and reinstating those causes of action to that extent.   There are triable questions of fact on the issue whether the device, as marketed with an attached but easily removable “cutter guard”, was not reasonably safe for the uses intended or reasonably anticipated by defendant and, further, whether the machine was purposely but defectively designed to permit its use without the cutter guard (see, Tuesca v. Rando Mach. Corp., 226 A.D.2d 157, 157-158, 640 N.Y.S.2d 106, affd. 89 N.Y.2d 966, 655 N.Y.S.2d 884, 678 N.E.2d 497;  Lopez v. Precision Papers, 67 N.Y.2d 871, 873, 501 N.Y.S.2d 798, 492 N.E.2d 1214;  Smith v. Minster Mach. Co., 233 A.D.2d 892, 893, 649 N.Y.S.2d 257).

Order unanimously modified on the law and as modified affirmed with costs to plaintiffs.


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