161 A.D.2d 1118 | N.Y. App. Div. | 1990
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment. Plaintiff was injured in a work-related accident while operating a chain
It is well settled that a person injured by a defective and dangerous product may maintain causes of action in New York to recover against both immediate and remote parties based on express or implied warranty, negligence or strict products liability (Heller v U. S. Suzuki Motor Corp., 64 NY2d 407; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106; Mead v Warner Pruyn Div., 57 AD2d 340; Restatement [Second] of Torts § 402 A, comments c, f). A manufacturer, distributor, or retailer of a product may not be held liable either in negligence or strict products liability where "[m]aterial alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature” (Robinson v Reed-Prentice Div., 49 NY2d 471, 481). Where, however, a product is purposefully manufactured to permit its use without a key safety feature, it is for the jury to determine the scope of the product’s intended purposes and whether the product was reasonably safe when placed in the stream of commerce (Lopez v Precision Papers, 107 AD2d 667, affd 67 NY2d 871, 873).
Defendants seek to avoid liability by claiming that the plaintiff substantially changed the saw’s condition by removing the chain brake and that this was the proximate cause of plaintiffs injuries. In moving for summary judgment, defendants were required to establish their defense "sufficiently to warrant the court as a matter of law in directing [summary] judgment” in its favor (CPLR 3212 [b]; Iselin & Co. v Mann Judd Landau, 71 NY2d 420). Defendants failed to do so. Although defendants have made an evidentiary showing that the chain saw was complete with chain brake at the time it