Opinion
194 SSM 25
Decided November 17, 2005.
APPEAL from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered April 18, 2005. The Appellate Division, with two Justices dissenting, insofar as appealed from, affirmed a judgment of the Supreme Court, Suffolk County (William Underwood, J.), entered upon an order of that court, which had granted those branches of summary judgment motions, by defendants Bock Water Heaters, Inc. and Honeywell, Inc., dismissing the complaint insofar as asserted against each of them and the cross claims against them.
The infant plaintiff was scalded by hot water from a sink tap. The hot water was produced by a water heater manufactured by defendant Bock Water Heaters and temperature controlled by an aquastat manufactured and sold by defendant Honeywell, Inc.
The Appellate Division majority concluded that Bock demonstrated, prima facie, that the plaintiffs could not exclude all other causes for its water heater's alleged failure that were not attributable to Bock; that the evidence submitted in opposition to Bock's prima facie showing of entitlement to judgment as a matter of law failed to set forth competent evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner; that the plaintiffs failed to demonstrate that Bock had a duty to warn, or that any alleged failure to warn could have been a proximate cause of the injuries; that Honeywell demonstrated, prima facie, that its aquastat functioned properly when tested after the incident; that, in opposition, no specific defect in the aquastat was established; and that plaintiffs failed to raise a triable issue of fact as to Honeywell's liability.
Cleary v. Reliance Fuel Oil Assoc., Inc., 17 AD3d 503, affirmed.
Kujawski Dellicarpini, Deer Park ( Bryan P. Kujawski of counsel), for appellants.
L'Abbate, Balkan, Colavita Contini, L.L.P., New York City ( Tomas B. Lim of counsel), for Bock Water Heaters, Inc., respondent.
Flynn, Gaskins Bennett, Minneapolis, Minnesota ( George W. Flynn of counsel), for Honeywell International Inc., respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
We agree with the Appellate Division majority that defendants Bock Water Heaters, Inc. and Honeywell, Inc. made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. Plaintiffs have failed to raise a triable issue of fact in opposition to defendants' motions.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.