Opinion
8802/03.
Decided July 7, 2005.
This motion, by defendant Tecumseth Products Co. (hereinafter "Tecumseth"), for an order pursuant to CPLR 3212 granting the following relief (a) dismissing plaintiff's complaint in its entirety as a matter of law; and (b) awarding all such further relief that the Court shall deem just, equitable and propoer, is determined hereinafter as set forth.
FACTS
This action arises out of injuries that the plaintiff, Mr. Vogel, allegedly sustained while operating a mini-bike on August 27, 2001. Tecumseth manufactured the engine that was installed on the mini-bike by the vehicle's manufacturer, defendant Loveless Enterprise, Inc. (hereinafter "Loveless"), against which a default judgment has been entered for failure to appear. Previously, this court had granted summary judgment in favor of defendant Hoffco-Comet Industries, Inc., which included the dismissal of all cross claims brought by defendant American Motorized Products, Inc. against Hoffco-Comet Industries, Inc. Further, this Court has granted the dismissal of all cross claims against the defendant Amity Vacuum Supply Inc. for indemnification by defendants American Motorized Products, Inc and Tecumseth.
Prior to the commencement of this action, the mini-bike was inspected by Wade Bartlett, an expert for the plaintiff, on June 29, 2002. It was then inspected by another expert, George Meinschein, on two separate occasions; May 15, 2003 and May 21, 2003. Mr. Meinschein drafted a report dated October 29, 2003, as to the cause of the accident. Mr. Meinschein then amended his report on October 26, 2004. The mini-bike was eventually made available for Tecumseth to inspect on Feb. 26, 2004.
DEFENDANT'S CONTENTIONS
Defendant contends that it is entitled to summary judgment based upon the spoliation of the mini-bike while it was under the exclusive control of the plaintiff. The defendant contends that the throttle cord was shortened by .24 inches between the time that it was inspected by Mr. Meinschein on May 15, 2003 and the time that it was inspected by Tecumseth on Feb. 26, 2004. Tecumseth argues that it will be unable to make an adequate determination about what caused the accident because of this alteration to the mini-bike. The defendant claims that it is therefore unjustly prejudiced by this spoliation, and as such should be awarded summary judgment.
Alternatively, the defendant argues that the amended report of Mr. Meinschein can not provide a basis to hold Tecumseth liable for the injuries. In his first report, Mr. Meinschein did not state that Tecumseth should be held liable for the injuries sustained by Mr. Vogel, but instead stated that defendant Loveless and defendant Amity Feed both contributed to the injury. This conclusion was also reached by Mr. Bartlett. However, in the second amended report, Mr. Meinschein reported that Tecumseth should be held liable. Tecumseth contends that this change was not supported by sufficient evidence, and it was only changed because the parties that Mr. Meinschein first held to be liable in his first report were no longer parties in this action.
Nonetheless, the defendant also argues that the second report is invalid because it was based on the bike after it was altered. The defendant argues that the increase in idling speed, which Mr. Meinschein states was the cause of the accident, can be explained by this shortening of the throttle cord.
Lastly, defendant contends that, as a matter of law, the plaintiff can not establish that the original design or manufacture of the engine was defective and proximately caused the accident at issue. The defendant claims that there is no evidence that the engine, when delivered into the stream of commerce, was defective. Any defect alleged by plaintiffs is not the responsibility of Tecumseth, but is that of the mini-bike's ultimate manufacturer, Loveless, because the throttle cable was not added to the engine by Tecumseth.
PLAINTIFFS' CONTENTIONS
The plaintiff, through Mr. Meinschein's report, argues that this increase in the idling speed was caused by the idling screw being set too high before it was sold, and not because of the shortening of the throttle cord. Mr. Meinschein's second report states that even though the shortening of the throttle cord does increase the idling speed, this does not explain why the idling speed was too high when he inspected the bike on May 15, 2003, prior to the shortening of the throttle cord. Mr. Meinschein believes that the high idling speed that he observed in his May of 2003 inspections was caused by the idling screw's setting. The plaintiff argues that since there is no evidence that the idling screw was manipulated by any other entity, the setting of the idling screw was prepared by the defendant at the time of manufacturing the engine.
DEFENDANT'S REPLY
The defendant claims that the plaintiff has not provided any evidence to rebut the defendant's prima facie showing of entitlement to summary judgement.
The defendant also reiterates that the modification of the engine, while in the plaintiff's possession, is prejudicial against the defendant because Tecumseth is unable to test the machine to determine how it functioned at the time of the accident.
DECISION
Initially, with respect to the issue of the plaintiff's expert opinion, it is well established that must be based upon facts personally known and testified by the witness or disclosed by the evidence in the record. ( Humbsch v. New York City Tr. Auth., 63 NY2d 723, 480 NYS2d 195, 1984; DiTommaso v. Fitzgerald Constr. Corp., 138 AD2d 341, 525 NYS2d 632 2nd Dep't 1988). In addition an expert may not guess or speculate. ( Espinosa v. A S Welding Boiler Repair, 120 AD2d 435, 502 NYS2d 451 1st Dep't 1986). Mr. Meinschein's opinion, as expressed in his Oct. 26, 2004 report, is based upon his personal knowledge and on the evidence in the record, and therefore shall be considered by this court. Mr. Meinschein based his Oct. 2004 report on additional depositions, photos of the mini-bike, and from his inspections of the bike in May of 2003. His opinion that the cause of the accident was the idle screw is supported by the fact that the idle screw was set too high, and an adjustment to the idling screw affects the idling speed. This does not constitute mere speculation on his part; and this Court does consider that report and opinion in a determination herein.
The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division, Second Dept., in ( Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 616 NYS2d 650, 651, 1994):
"It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853, 487 NYS2d 316, 476 NE2d 642; Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 404 NE2d 718). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue ( State Bank of Albany v. McAuliffe, 97 AD2d 607, 467 NYS2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, 501 NE2d 572; Zuckerman v. City of New York, supra, 49 NY2d at 562, 427 NYS2d 595, 404 NE2d 718)".
The defendant's initial burden on a motion for summary judgment must be satisfied by producing evidence establishing that the plaintiff's injuries were not necessarily caused by a manufacturing defect in the product. ( Halloran v. Virginia Chems. , 41 NY2d 386, 393 NYS2d 321, 1977; D'Elia v. Gleason Funeral Homes, 250 AD2d 803, 674 NYS2d 383 2nd Dep't 1998; Grahman v. Pratt Sons, 271 AD2d 854, 706 NYS2d 242 2nd Dep't 2000). Tecumseth has submitted evidence that the product at issue was tested and found to have met all applicable federal and state regulations, as well as all applicable industry standards prior to being entered into the stream of commerce. As such, Tecumseth has met its threshold burden of submitting evidence constituting a prima facie showing that the product in question was not defective at the time it left defendant's hands.
The burden now shifts to the plaintiff to raise an issue of fact. The plaintiff must produce direct evidence of a defect in the product in order to defeat the motion. ( Sideris v. Simon A. Rental Serv., 254 AD2d 408, 678 NYS2d 771 2nd Dep't 1998; Winckel v. Atlantic Rentals Sales, 159 AD2d 124, 557 NYS2d 951 2nd Dep't 1990). The plaintiffs have not provided the Court with any demonstrative evidence to overcome the defendant's prima facie showing. While the plaintiffs assert, through Mr. Meinschein's report, that the idle screw was set too high, they present no evidence of who had misaligned the screw. The plaintiffs show no direct evidence that Tecumseth's inspection of the engine, prior to placing the engine into the stream of commerce, was insufficient; nor do they provide any evidence that would lead this Court to infer that Tecumseth in any way misaligned the idling screw. All evidence presented points to the conclusion that the engine was in faultless condition when it left Tecumseth's possession. The Court will not speculate as to whom may have misadjusted the idling screw.
The plaintiffs have failed to rebut the defendant's prima facie showing and, therefore, the defendant's motion for summary judgment is granted.
This Court will not make a determination on the spoliation of evidence, as such issue is made academic by dismissal of the action against Tecumseth by this summary judgment determination. The action against the remaining defendants is severed and continued.