Alvarado v. Otto Martin Maschinebau Gmbh & Co.

—In an action to recover damages for personal injuries, the defendant Otto Martin Maschinebau Gmbh & Co., appeals from an order of the Supreme Court, [346] Kings County (Golden, J.), dated June 26, 1995, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is reversed, on the law, with costs, the motion by the defendant Otto Martin Maschinebau Gmbh & Co. is granted, and the complaint is dismissed insofar as asserted against it. The plaintiff was allegedly injured while operating a power table saw manufactured by the defendant Otto Martin Maschinebau Gmbh & Co. (hereinafter Martin). The plaintiff testified at an examination before trial that he was feeding a piece of plywood into the saw when the wood "kicked back” and struck him in the chest, causing him to lose consciousness and fall onto the blade. The plaintiff sustained injuries to his right hand. When the saw was shipped to the plaintiff’s employer, it was equipped with a parallelogram saw guard and a splitting wedge to which an antikickback finger was fastened. These devices were not present on the saw when the accident occurred. The Supreme Court denied Martin’s motion for summary judgment, concluding that issues of fact existed with respect to the plaintiff’s assertions that (1) the saw was defectively designed, and (2) the saw was manufactured with attached but removable safety devices. We reverse. We have recently observed that "[a] manufacturer may not be cast in damages, either on a strict products liability or negligence cause of action, where, after the product leaves the possession and control of the manufacturer, there is a subsequent modification which 'substantially alters the product and is the proximate cause of the plaintiff’s injuries’ ” (Wyda v Makita Elec. Works, 232 AD2d 407, citing Robinson v Reed-Prentice Div., 49 NY2d 471). Martin’s moving papers demonstrated that the saw in question was shipped with the requisite safety devices, but that these devices had been removed by the time the plaintiff’s accident occurred (see, Robinson v Reed-Prentice Div., supra). The plaintiff’s opposing papers failed to create triable issues of fact with respect to the claim that the absent safety devices had been designed to be removed and the saw itself was designed to be operable without those devices in place (see, Wyda v Makita Elec. Works, supra; cf., Lopez v Precision Papers, 67 NY2d 871, 873). The affidavit submitted by the plaintiff’s expert offered no opinion with respect to the allegation that the saw’s safety devices were designed to be removed. We have reviewed the plaintiff’s remaining contentions and [347] find them to be without merit. Rosenblatt, J. P., Thompson and McGinity, JJ., concur.