PARRA v. (and a third-party action).

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

Francisco PARRA, et al., appellants, v. D & F PAINT CO., INC., et al., respondents (and a third-party action).

Decided: March 27, 2007

REINALDO E. RIVERA, J.P., FRED T. SANTUCCI, DANIEL D. ANGIOLILLO, and THOMAS A. DICKERSON, JJ. Steven Weissman (Jonathan M. Cooper, Cedarhurst, N.Y., of counsel), for appellants. Barry, McTiernan & Moore, New York, N.Y. (Suzanne M. Halbardier of counsel), for respondents. Cerussi & Spring, White Plains, N.Y. (Peter Riggs of counsel), for third-party defendant.

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated September 28, 2005, as granted that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as sought to recover damages based upon the theory of design defect.

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

On their motion, the defendants demonstrated their entitlement to summary judgment dismissing so much of the complaint as sought to recover damages based upon the theory of design defect, by establishing through competent expert evidence that the allegedly defective “lacquer sealer” had no feasible alternative design (see Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204).   In response, the plaintiff failed to raise a triable issue of fact.   Accordingly, the Supreme Court correctly granted that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as sought to recover damages based upon the theory of design defect (see Perez v. Radar Realty, 34 A.D.3d 305, 824 N.Y.S.2d 87;  Felix v. Akzo Nobel Coatings, 262 A.D.2d 447, 449, 692 N.Y.S.2d 413;  see also Rodriguez v. Sears, Roebuck & Co., 22 A.D.3d 823, 824, 803 N.Y.S.2d 184;  Banks v. Makita, U.S.A., 226 A.D.2d 659, 660, 641 N.Y.S.2d 875).

The plaintiffs' contention that the Supreme Court improperly vacated a certain stipulation is not properly before this court (see Matter of Roman v. Roman, 8 A.D.3d 394, 395, 777 N.Y.S.2d 746;  Schlein v. White Plains City School Dist., 292 A.D.2d 367, 738 N.Y.S.2d 597;  see also Sample v. Levada, 8 A.D.3d 465, 468, 779 N.Y.S.2d 96).   The plaintiffs' remaining contentions are without merit.

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