Opinion
2002-04200, 2002-07152
Submitted September 16, 2003.
October 20, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Davis, J.), dated April 2, 2002, which granted the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint, and (2) a judgment of the same court entered May 14, 2002, which, upon the order, dismissed the complaint.
Perry Gary Fish, Brooklyn, N.Y. (Shaina Baila Baras of counsel), for appellant.
Gerald Neal Swartz, New York, N.Y., for defendant third-party plaintiff-respondent.
Before: A. GAIL PRUDENTI, P.J., NANCY E. SMITH, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and is further,
ORDERED that one bill of costs is awarded to the defendant third-party plaintiff-respondent.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1]).
One of the plaintiff's fingers was severed while she was working with a drill press in the course of her employment with the third-party defendant, Great Neck Saw Manufacturers, Inc. (hereinafter Great Neck). The defendant third-party plaintiff, Delta International Machinery Corp. (hereinafter Delta), manufactured the drill press.
The Supreme Court properly granted Delta's motion for summary judgment dismissing the complaint. Delta made a prima facie showing of entitlement to judgment as a matter of law by showing that its product was not defective, and that the possible causes of the accident were the fault of the plaintiff or of Great Neck ( see Scarangella v. Thomas Built Buses, Inc., 93 N.Y.2d 655; Sideris v. Simon A. Rented Svcs., 254 A.D.2d 408). In opposition to the motion, the plaintiff failed to proffer competent evidence of the existence of a defect in the drill press sufficient to raise a triable issue of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851; Zuckerman v. City of New York, 49 N.Y.2d 557; Kahn v. Dominques, 288 A.D.2d 349; cf. Speller v. Sears Roebuck Co., 100 N.Y.2d 38). The opinion of the plaintiff's expert, a licensed professional engineer whose resume was not submitted, was not supported by foundational facts such as actual testing of the drill press, statistics showing frequency of injury resulting from the machine's design, or consumer complaints ( see Martinez v. Roberts Consolidated Industries, 299 A.D.2d 399; Passante v. Agway Consumer Prods., 294 A.D.2d 831; Cervone v. Tuzzolo, 291 A.D.2d 426; Geddes v. Crown Equipment Corp., 273 A.D.2d 904; Merritt v. Raven Co., 271 A.D.2d 859, 862).
The plaintiff's remaining contention is without merit.
PRUDENTI, P.J., SMITH, FRIEDMANN and H. MILLER, JJ., concur.