Papworth v. Landrover North America, Inc.

Appeal from those parts of an order of Supreme Court, Onondaga County (Murphy, J.), entered March 28, 2002, that, inter alia, denied in part the motions of defendant Michelin North America, Inc. for summary judgment seeking dismissal of the complaints against it. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs commenced these actions seeking to recover damages arising out of the death of John T. Papworth (decedent). Decedent was killed in 1998 when the vehicle that he was driving, manufactured by defendant Landrover North America, Inc., spun out of control and rolled over several times, allegedly as a result of a tire blowout. The tire was allegedly manufactured by defendant Michelin North America, Inc. (MNA); however, MNA denies that it manufactured, sold or distributed the tire, and moved for summary judgment seeking dismissal of the complaints against it on that ground. Supreme Court denied the motions in part, and we affirm. In support of its motions, MNA submitted proof that markings on the blown tire indicate that it was manufactured in England by the Michelin Tyre Company, Ltd. (Michelin Tyre). Both MNA and Michelin Tyre are subsidiaries of Compagnie Générale des Etáblissements Michelin, of France. However, the 899 assertions of MNA that it had not manufactured, sold or distributed that model tire were made only upon information and belief, and such assertions are insufficient to establish MNA’s entitlement to summary judgment (see Onondaga Soil Testing v Barton, Brown, Clyde & Loguidice, 69 AD2d 984 [1979]). Further, MNA also failed to establish that it had a corporate existence separate from Michelin Tyre when the subject tire was manufactured and sold. Present—Pigott, Jr., PJ., Wisner, Hurlbutt and Gorski, JJ.