This action involves an accident which occurred on August 12, 1999 at about 7:30 a.m. at the intersection of Silver Lake Road and Route 20A In the Town of Perry, New York. Silver Lake Road is controlled by a stop sign, while Route 20A has the right of way. At the time of the accident the plaintiff, Cindy Appolson (Appolson), was employed by Top Notch, Inc., and making deliveries for it. She was driving a 1998 Chevrolet Fleetside (Fleetside), pick-up truck, which was owned by David Larocco (Larocco), who was the President and owner of Top Notch, Inc. Appolson was using the Larocco vehicle for the first time, because her vehicle was being repaired. Larocco had purchased the vehicle in October, 1997 from First Union Leasing Group,

Inc. According to Larocco, on four or five occasions prior to the accident, the brakes on the Fleetside did not function properly, and it barely stopped. Larocco had the Fleetside serviced about five times prior to the accident and the brakes checked, but nothing major was discovered as defective with the brakes, other than worn front brake pads and front rotors.

On August 12,1999 Appolson was proceeding north on Silver Lake Road in the Fleetside, as she approached its intersection with Route 20A. Appolson stated that she was aware of the [*2]stop sign at the intersection, and began braking when she was approximately 100 feet away from the stop sign. At this time she was traveling at about 30 to 35 miles per hour. According to Appolson, when she applied the brake pedal, it went completely to the floor, and the brakes did not engage. She pumped the brake pedal repeatedly, but it continued to go to the floor without slowing the vehicle. The Fleetside continued traveling through the stop sign and into Route 20A, where it struck the rear section of a truck proceeding west on Route 20A. The impact caused the truck to veer into the eastbound lane of Route 20A, and strike a car, which came to rest in an adjacent filed. The weather conditions on the day of the accident were clear and dry.

Appolson maintains in this products liability action against the defendant, General Motors Corporation (G.M.), that the master cylinder and/or the anti-locking brake system was defectively manufactured, which caused the braking system to intermittently fail. The Court has before It G.M.'s motion for summary judgment, dismissing Appolson's action against it, In support of its motion G.M. has submitted the affidavit of Bruce Bowman (Bowman).

Bowman is a mechanical engineer, who inspected the Fleetside in January, 2006. he maintains that there are no defects in the design or manufacture of the 1998 Fleetside brake system, pointing out that there have been no safety recalls relating to this brake system. Bowman explained that the brake system of the Fleetside was a mechanical one, and failure could only occur in a limited number of ways. The first of these was that the wrong brake fluid could have been used, but there was no evidence of this with the Fleetside. According to Bowman, another cause for this type of brake failure could be overheating of the brakes. However, he ruled this out here, since there was no evidence that the brakes overheated. Bowman's final cause for complete brake loss is if there is a "catastrophic failure,' such as a fractured brake pedal. Bowman stated that this would be obvious, and there was no such evidence on the Fleetside. Bowman's alternative cause to this accident is that Appolson failed to apply her brakes "due to inattention or misapplication." This explanation is pure speculation on the part of Bowman, since there is no proof here to support such an assertion.

In opposition to the motion, Appolson had submitted affidavits from four individuals with expertise in auto mechanics. Raymond Wilkie (Wilkie) has been a mechanic for the past 30 years, and stated that he was very familiar with the brake system of the Fleetside, In July 1999 he was asked by Larocco to test drive the Fleetside, because of brake problems. According to Wilkie, while driving the vehicle and attempting to stop at a stop sign, he pressed the brake pedal, which pulsated momentarily, and then went completely to the floor, He was unable to stop the vehicle. It was Wilkie's opinion that the master cylinder or the anti-lock braking system malfunctioned.

Frank Behr (Behr), also test drove the Fleetside for Larocco on May 5, 1999. Behr had been an auto mechanic for the past 45 years, and was familiar with the Fleetside brake system. Behr stated that he drove the Fleetside from Perry, New York to Batavia, New York, and was required to stop at several stop signs during the approximately 48 mile round trip. At one of the stop signs, the brakes failed completely when Behr applied them, and the peddle went to the floor. According to Behr, there was nothing in the manner In which he applied the brakes that would cause them to fail, since his attempt to stop was routine. It was Behr's opinion that the braking system was defective due to a faulty master cylinder. [*3]

In March, 2000 after this accident. Norman Ball (Ball) purchased the Fleetside for $6,000.00. At that time it was considered a total loss, and Ball was aware that it had been in an accident in August, 1999. Ball made extensive repairs to the Fleetside, but did nothing to the accident in August, 1999. Ball made extensive repairs to the Fleetside, but did nothing to the brake system. The repairs took about one year, which prevented the vehicle from being operated on the road until March, 2001. Ball eventually sold the Fleetside to G.M. in the spring of 2004. According to Ball, during the three years he operated the vehicle the brake system failed on five different occasions. The anti-lock brakes improperly engaged under normal braking conditions, and then completely failed. On four of the five times the brakes failed Ball was able to avoid an accident. When the brakes failed the fifth time, Ball was unable to stop the vehicle in a parking lot, and struck a guardrail. Ball maintains that he has owned several vehicles with anti-lock braking systems, and none of their brake systems reacted as did the Fleetside's. It was Ball's opinion that the brake failure was caused by a defective anti-lock brake system.

Thomas DiPasquale (DiPasquale), provided an affidavit as an expert for Appolson. DiPasquale has been an auto mechanic for the past 23 years, and owns Kenmore Auto Tech. He stated that he is very familiar with various vehicle braking systems, since he has performed service work on them 'on hundreds of occasions," Including over 50 on Fleetsides. DiPasquale Inspected the Fleetside on August 10, 2006. It was DiPasquale's expert opinion that the brake failure of the Fleetside was the direct result "of a manufacturing defect in the internal components of the master cylinder." He believed the defect caused an intermittent loss of pressure n the master cylinder, which failed to activate the brake system every time the brake pedal was depressed. DiPasquale stated that because the brakes failed intermittently, this would lead to the conclusion there was a manufacturing defect in the master cylinder. DiPasquale pointed out that if the brakes failed because of a broken part, the failure would occur each time the brakes were applied. DiPasquale disagreed with Bowman that a possible cause of the Fleetside brake failure was driver Inattention or misapplication of the brakes. It

was "Inconceivable" to him that three different drivers, all experienced mechanics and familiar with anti-lock braking systems, would have experienced intermittent brake failure because of driver inattention or misapplication of the brakes. It would appear that this would be especially true when two of the drivers were operating the Fleetside to determine if there was a brake problem.

The Court's role In determining a summary judgment motion is "issue identification, not issue resolution" (Speller v. Sears. Roebuck and Co., 100 NY2d 38, 44). In a products liability case it is not necessary for a plaintiff to identify and prove a specific defect In the product, but rather proof of the necessary facts can be circumstantial (Speller v. Sears. Roebuck and Co., 100 NY2d 38; Halloran v. Viroinia Chems, 41 NY2d 386; Saunders v. Farm Fans. Division of FFI Corporation, 24 AD3d 1173; Taft v. Sports Page Shop Inc., 226 AD2d 974). In such a situation a plaintiff is required to prove that the product did not perform as intended, and exclude all other causes for the product's failure that are not attributable to the defendant (Id.). Here, It is obvious that the Fleetside brake system did not perform as intended. Furthermore, the proof before the court established, for purposes of this motion, that Appolson and the others who drove the Fleetside applied the brakes timely and properly, and did not misuse them. Appolson's proof on [*4]the motion if accepted, would exclude any other causes for the brake system failure not attributable to G.M. Appolson has also come forward with expert opinion from experienced auto mechanics that the cause of the Fleetside's brake failure was a manufacturing defect in the mater cylinder and/or anti-lock brake system. As previously stated, Bowman's opinion that a cause of the brake failure could have been driver inattention and/or misapplication of the brakes, is merely conjectural. Based upon the foregoing, the Court concludes that Appolson has raised issues of fact, which must be determined by a trial of this action.

G.M. has cited the brake failure case of Henry v. General Motors Corp., Chevrolet Motor Div., 201 AD2d 949, In support of its position. However, that case Is distinguishable from the present action, In Henry the plaintiff offered no expert proof that the brakes failed because of a manufacturing defect, nor did the plaintiff eliminate all causes of the accident not attributable to the defendant. The plaintiff merely attempted to establish a prima facie case by proof of the occurrence of the accident alone on the issue of manufacturing defect.

For the reasons set forth herein, G.M.'s motion for summary judgment must be denied.

SO ORDERED:

Hon. Patrick H. NeMoyer, J.S.C.