Ramos v. Howard Industries, Inc.

Appeal from an order of the Supreme Court, Chautauqua County (Paula L. Feroleto, J.), entered February 23, 2006 in a products liability action. The order denied defendant’s motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs. Memorandum: Plaintiff commenced this products liability action seeking damages for injuries he allegedly sustained when a transformer designed and manufactured by defendant exploded. The explosion occurred shortly after plaintiff energized the transformer while in the course of his employment as a lineman [1164] for Niagara Mohawk Power Corporation (Niagara Mohawk). Initially, plaintiff reported to his employer and doctors that he was injured when he reached out of an aerial bucket while installing the transformer on a utility pole. Plaintiff later claimed that his injuries occurred as a result of the transformer explosion, but at that time the transformer could not be located for inspection or testing concerning the cause of its failure. Plaintiff alleges, inter alia, that his injuries were caused by defendant’s defective design and manufacture of the transformer. We conclude that Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint, although our reasoning differs from that of the court. In support of its motion, defendant had the burden of establishing as a matter of law that there was no defect in the design or manufacture of the transformer (see Maciarello v Empire Comfort Sys., 16 AD3d 1009, 1010 [2005]; Lauber v Sears, Roebuck & Co., 273 AD2d 922 [2000]; Terry v Erie Foundry Co., 235 AD2d 414, 415 [1997]). We note in particular that defendant cannot meet its burden “merely by pointing to the gaps in its opponent’s proof’ (McArthur v Muhammad, 27 AD3d 532, 533 [2006]; see George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]; see also Frank v Price Chopper Operating Co., 275 AD2d 940 [2000]). Here, defendant submitted evidence establishing that its transformers generally were designed and manufactured under state of the art conditions according to Niagara Mohawk’s specifications and complied with all applicable industry standards, and that the transformer in question would have been individually tested to ensure compliance with customer specifications and industry requirements. That evidence does not establish as a matter of law that the transformer was not defective and that a manufacturing defect therefore did not cause the explosion (see Graham v Pratt & Sons, 271 AD2d 854 [2000]; Peris v Western Regional Off-Track Betting Corp., 255 AD2d 899 [1998]). Inasmuch as defendant failed to meet its burden on the motion, there is no need to consider the adequacy of plaintiffs submissions in opposition (see Herman v Town of Clarence, 256 AD2d 1229, 1230 [1998]). Finally, we note that defendant did not seek spoliation sanctions, and thus we have not considered plaintiffs alleged fault for the unavailability of the transformer for inspection and testing. All concur except Peradotto, J., who dissents and votes to reverse in accordance with the following memorandum.