ECCLES v. CORP

Reset A A Font size: Print

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

Daryl E. ECCLES and Donna M. Eccles, Plaintiffs-Respondents, v. E.M.I. CORP., d/b/a The Trade Name E.M.I. Plastics Equipment Corp., Defendant-Appellant.

Decided: March 31, 1999

PRESENT:  DENMAN, P.J., LAWTON, HAYES, PIGOTT, JR., and HURLBUTT, JJ. Samuel James Capizzi, of counsel, Brown & Mohun, Depew, for plaintiffs-respondents. Roy Mura, of counsel, Earl K. Cantwell II, Law Office of Roy A. Mura, Buffalo, for defendant-appellant.

Daryl E. Eccles (plaintiff) sustained injuries when a conveyor manufactured by defendant rolled away from a press machine and fell to the ground.   Plaintiff was in the process of attaching the conveyor to the press machine when the injury occurred.   Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint asserting causes of action for negligence, strict products liability and breach of warranty.   Defendant failed to establish as a matter of law that the conveyor was in a safe condition when it was sold to plaintiff's employer (see, Dickerson v. Meyer Mfg., 248 A.D.2d 970, 669 N.Y.S.2d 1001;  see generally, Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 450 N.E.2d 204).   In addition, defendant failed to establish as a matter of law that the modifications made to the conveyor by plaintiff's employer rendered the conveyor defective and caused plaintiff's injuries (see, Smith v. Minster Mach. Co., 233 A.D.2d 892, 893, 649 N.Y.S.2d 257;  Lamey v. Foley, 188 A.D.2d 157, 168, 594 N.Y.S.2d 490;  see generally, Liriano v. Hobart Corp., 92 N.Y.2d 232, 238, 677 N.Y.S.2d 764, 700 N.E.2d 303;  Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717, 403 N.E.2d 440).

Order unanimously affirmed without costs.

MEMORANDUM: