Patane v. Thompson & Johnson Equipment Co.

Order and judgment unanimously affirmed without costs. Memorandum: Plaintiff commenced this action sounding in negligence, breach of warranty and strict products liability to recover damages for personal injuries he sustained in the course of his employment at Peter’s Groceries, Inc. (Peter’s). Plaintiff and a coemployee were assigned the task of consolidating and storing various grocery products. A forklift truck was utilized to move the groceries to a storage area. While operating the forklift truck in a reverse direction, the coemployee allegedly struck plaintiff, who sustained personal injuries. Plaintiff alleged that defen 906 dant is liable to him because it failed to equip the forklift truck with a back-up warning alarm. Defendant moved for summary judgment dismissing the complaint and Supreme Court granted its motion. We affirm. Defendant, the supplier of the forklift truck, established its entitlement to judgment in its favor as a matter of law. Defendant demonstrated that the forklift truck was reasonably safe, thus satisfying its duty not to market a defective product. It further demonstrated that the back-up warning alarm is not mandated by any Federal or State law, rule or regulation; that it advised Peter’s in writing of the availability of certain optional safety devices, including a back-up warning alarm; and that Peter’s, who was in the best position to evaluate the need for such safety devices based upon the environment in which the forklift truck would be used, made a deliberate decision not to purchase the warning alarm. Plaintiff failed either to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do” (Zuckerman v City of New York, 49 NY2d 557, 560). Therefore, under the circumstances, the court properly granted summary judgment in favor of defendant (see, Paul v Ford Motor Co., 200 AD2d 724, lv denied 83 NY2d 757; Fallon v Hannay & Son, 153 AD2d 95; Biss v Tenneco, Inc., 64 AD2d 204, lv denied 46 NY2d 711). (Appeal from Order and Judgment of Supreme Court, Onondaga County, Mordue, J.—Summary Judgment.) Present—Pine, J. P., Fallon, Wesley, Davis and Boehm, JJ.