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.

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.

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 [*2]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.

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.

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 [*3]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.

"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 [*4]

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 2d Dep't 1998; Grahman v Pratt & Sons, 271 AD2d 854, 706 NYS2d 242 2d 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 2d Dep't 1998; Winckel v Atlantic Rentals & Sales, 159 AD2d 124, 557 NYS2d 951 2d 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 [*5]

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.

Dated J.S.C.