In this personal injury action against multiple parties, plaintiff Reinaldo Melendez-Natal ("plaintiff") seeks to recover damages for serious injuries he sustained in February, 2003 when his arm was crushed in a compacting machine known as a "baler." At the time of the incident plaintiff was working at Gristede's Store No. 98 in Manhattan, New York. Defendant Maren Engineering Corporation ("Maren"), manufacturer of the baler in question, now moves for summary judgment as to plaintiff's claims. CPLR § 3212(b). In support of its motion, Maren submits an affirmation of counsel, the affidavit of its designated expert mechanical engineer James K. Sprague and copies of the following documents: the verified complaint; verified answers to the complaint; plaintiff's response to Maren's interrogatories; transcripts of the examinations before trial ("EBTs") of Maren (by Alan Rudofski and William Kielbase), of defendant Namdor, Inc., of defendant Red Apple Group, Inc., of defendant LNS New Light Service, Inc., of plaintiff, and of photographer Joseph Totino; and various exhibits.

Plaintiff opposes the motion insofar as it seeks summary judgment on his first cause of action for negligence, and his third cause of action for strict products liability. Plaintiff abandons his second cause of action for breach of express and implied warranties. In support of his opposition, plaintiff submits an affirmation of counsel and the following documents: plaintiff's affidavit; the affidavit of his designated expert manufacturing and industrial engineer Harold Erlich; transcript of the examination before trial ("EBT") of Maren (by William Kielbase); and various exhibits.

I.Procedural History

Plaintiff initially brought suit, under IndexNo. 101862/2004 , against Maren, the manufacturer of the baler; Red Apple Group, Inc. ("Red Apple"), Namdor, Inc. ( Namdor"), Gristedes Food NY, Inc. ("Gristedes Food"), and Gristede's NY, LLC ("Gristedes LLC"), as owners of the Gristedes store and the Maren baler, and as entities responsible for the inspection, maintenance and servicing of the baler, along with New England Hydraulic, Inc. ("New England") and LNS New Light Service, Inc. ("LNS"). Namdor, by Order to Show Cause, sought to dismiss plaintiff's action on the ground that it was plaintiff's employer and therefore Worker's Compensation Insurance was available. By stipulation of the parties and the Order of this Court dated May 5, 2005, the action against Namdor was dismissed and it then became a third-party defendant based on the then-existing cross-claims.

Plaintiff then filed a second and separate action under Index No. 102190 in 2006 against putative employees of Namdor, Steven Moskowitz ("Moskowitz") and John Gildea ("Gildea"); as well as several entities involved in the administration of certain supermarket locations: Red Apple Company; Red Apple, Inc., Gristede's Operating Corp.,Gristede's Bros., Inc., Sloan's Supermarket, Inc., and Jack Squicciarini ("Squicciarini"), as an employee of Red Apple Company in charge of "security" at certain supermarket locations. Plaintiff also named Namdor "as the successor in interest of Gristede's Operating Corp." By Order dated January 29, 2007, this Court (on agreement of the parties) consolidated the two separate actions brought by plaintiff, granted the defendants' motion for summary judgment in part insofar as it sought to dismiss the [*2]complaint against defendant Gristede's Operating Corp.. This Court also granted, in part, plaintiff's motion for reargument of a prior motion to dismiss the complaint, and modified its Order dated October 31, 2006, thereby allowing plaintiff's claims against defendants Moskowitz and Gildea to continue. The employment status of several defendants, as well as what is owned by the several corporate defendants, are highly disputed in this action. Determining the relationships among the defendants is a complicated endeavor thanks to the large degree of overlap and apparent interchangeability of employees within the interrelated group of corporations. The Court does not however need to unravel the complex web of relationships at this time in order to resolve the instant motion, which concerns only Maren, the manufacturer of the baler.

I. Statement of Undisputed Facts

The following facts are undisputed. Maren designed and manufactured a "baler" bearing Model No. 2036 and Serial No. 5333. (Verified Complaint ¶¶ 2, 23 - 26; Verified Answer ¶ 1.) This baler is a machine the size of a refrigerator that is designed to crush cardboard and other paper, to form the crushed material into compacted bales, to allow for tying of the bales, and to eject the bales for disposal. The crushing mechanism is called the "ram." Model No. 2036 was a "vertical" or upright baler that Maren manufactured in 1973, along with other models. Vertical balers had either automatic or manual control options. (Rudofski EBT, pp. 22-24.) The balers were shipped with operating manuals. (Kielbase EBT, p. 32.) In 1973 Maren sold twelve vertical balers to its then dealer The Jennings Company, Inc. for shipment to Gristedes, six of which were manual "split" balers. Balers were built to conform to the voltage of the customer's power supply. One of these balers, a Model No. 2036, with Serial No. 5333, is the baler under scrutiny in this action. (Plaintiff's Response to Interrogatories, p. 11, Exh. F.) Maren did not service this baler after it was purchased by The Jennings Co. and delivered to Gristedes.

A Model No. 2036 split baler was shipped in two pieces, assembled at the customer's business, and was operated manually. An operating manual was provided with the machine. (Rudofski EBT, pp. 52-63.) This particular design included a mercury safety switch attached to the feeder door that shut off the machine when the door was open, and a feeder door (the door through which the material to be crushed was fed into the machine), which was hinged at the bottom as opposed to a sliding door. The mercury safety switch worked with the hinged feeder doors that fold down, but not the sliding door models. William Kielbase, an employee with Maren since 1972, installed the electrical, including mercury switches, and the hydraulics on Model No. 2036 split balers. He stated that all Model 2036 Maren balers had mercury safety switches, and that the policy of the company was to make sure that when the feeder door was open, the machine would not run. (Kielbase EBT, pp. 9, 16, 21, 24, 26.)^[FN1]

The Model 2036 split baler delivered to Gristedes in this case had a hinged door, a mercury safety switch, and a cross valve, which is an operating valve for the hydraulics that allowed the ram to move up and down to crush the loaded material.^[FN2] The machine was also [*3]manufactured and equipped with a ram cover that could be removed to clean behind the ram.^[FN3] The ram cover prevented entry to the area above the ram when it was down, blocking the entire space between it, the frame and the area above the frame. The purpose of the ram cover was to prevent injury. (Kielbase EBT, pp. 39, 50, 85-86.) As designed this model required the operator to keep his or her hand on the lever pulling it down for the ram to function, and the feeder door had to be shut. If the feeder door was opened while the machine was operating, the safety switch would break the electrical circuit, causing the pump motor that drove the ram to stop. There was a separate ejector door through which the bale was ejected from the baler, and the ram could be moved with that door open, but if the operator stopped pulling down on the lever, the ram would return to a neutral position and stop moving. (Rudofski EBT at pp. 118-142, 188-191; Kielbase, EBT, pp. 28-30.)^[FN4] Someone would have had to remove and replace the electric circuitry to the mercury switch and to change the hydraulics on the lever in order to operate the Model No. 2036 baler with the feeder door open, and for the ram to continue moving up and down without the operator's hand on the lever. (Kielbase EBT, pp. 76-80.)^[FN5]

Maren's operating manual included a list of the purchaser/owner's responsibilities. Key among these are management's responsibilities to ensure proper installation, to conduct all maintenance, to ensure safe and proper operation, and to ensure that,

"AFTER REPAIR OR MAINTENANCE ... ALL SAFETY PROVISIONS ARE IN PLACE AND OPERATING BEFORE ALLOWING THE BALER TO BE PLACED IN OPERATION. SAFETY SWITCHES MUST BE OPERABLE AND ALL GUARDS AND COVERS IN PLACE."

Maren's manual also included a preventive maintenance check list for vertical balers. Among the items on that list are checking for leaks, checking the springs, and checking "that safety switches have not been by-passed." Gristedes did not employ individuals to do maintenance or repair work on equipment, including balers, instead farming out that work to an outside contractor. (Moskowitz EBT, pp. 25-29.)

Maren asserts that stickers on the baler provided strong warnings against trying to use the machine without the safety features. At the time of the accident there were no such stickers visible on the baler, since the baler had been painted red. Maren employee Kielbase recalled that Maren put stickers on the machines, but he could not remember the stickers' content. (Kielbase [*4]EBT, p. 34.) Photographs taken of another Maren baler Model No. 2036, purchased by a different buyer in 1974, show a blue machine with a rectangular sticker on the front of the machine that reads, "DO NOT ATTEMPT TO DEFEAT THIS SWITCH. DOOR MUST BE IN CLOSED POSITION WHEN MACHINE IS IN OPERATION." (Totino Affidavit, ¶¶ 1-5, Exh. U to Motion.)Namdor employee Steven Moskowitz, who handled maintenance for various supermarkets, including the Gristedes at issue here, agreed that if the baler were able to continue moving, with the operator not holding onto the lever, then the machine should not be used. He stated also that this instruction was passed on to the management and store level personnel. (Moskowitz EBT, p. 117.) He was instructed to remove a baler from service in the event it could be operated with the feeder door open. (Ibid. at p. 120.) He was also aware that prior to February 2003 balers owned by the supermarkets had written warnings on them that were created by the security department. (Ibid. at 125.)

Although there is no consensus regarding exactly when the Maren Model No. 2036 baler in this case was altered, there is no dispute that alterations were made. Some time prior to the accident underlying this lawsuit, the mercury safety switches on the Maren balers used by Gristede's were replaced by either "limit" or "micro" switches, allowing the balers to be operated while the feeder door was open. (Moskowitz EBT, p. 97-99.) The original mercury safety switch housing was left hanging from the electrical wire connected to it on the Maren baler at issue here. (Kielbase EBT, ¶ 82.) As of March 18, 2002, the fact that the "safety" on the baler in issue was not working had been reported to the maintenance department at Gristedes. (Ibid. at pp. 92-97.) On the day of his accident, Plaintiff had been working for Gristedes and running the baler for eleven and one-half months. His only instruction on its use was provided by another store employee on the day he started work. At that time, the baler was in the same condition as on the day of the accident there was an opening, like a window in the front to put boxes through, the baler ran with the front open, the "crusher" would continue moving after the operator removed his hand from the lever that controlled it, and the ram cover had been removed. Plaintiff first learned there was a door to the front after his accident; the hinged door had been folded down inside the baler and painted the same color as the machine's exterior. Plaintiff never received any other instructions (verbal or written), there were no verbal, written or posted warnings, the only maintenance consisted of his putting oil in the machine, and the machine was not taken out of service. Until his accident, plaintiff never had any problem with the machine.

On the day of the accident, plaintiff shoveled snow outside before operating the baler. Plaintiff mopped the floor around the baler before he started compacting boxes that day, and the floor and his boots were wet. After he started up the machine, plaintiff moved the lever upward to start the ram moving in an upward position. He removed his hand from the lever to retrieve another box, and when he turned back toward the baler he slipped on a flattened carton that had become wet from the floor beneath, and fell forward into the baler. His arm went through the feeder opening and was crushed by the ram as it independently moved upward. His arm was subsequently amputated at the shoulder.

III. Proposed Expert Testimony

Plaintiff and Maren each submitted affidavits of manufacturing and industrial engineers they plan to call as expert witnesses on the issue of design defect and the causal relationship between any such defect and plaintiff's injuries. Maren's proposed expert James K. Sprague [*5]opines that the Maren baler at issue here was designed and manufactured without defect, that the design included redundant safety features "any one of which would have precluded the occurrence of the accident," that the baler was substantially modified from its original condition prior to the accident, which rendered the machine less safe, and that the accident would not have occurred "but for the substantial modification." Sprague reviews the way in which the integrated safety features were designed to function and concludes that the inclusion of the mercury safety switch and the constant pressure lever "are in themselves warnings to the owner and operator of the Maren baler that bypassing the safety features could be dangerous. Sprague further states that the painting of the baler after it was purchased obscured and rendered useless any warning plates or signs that had been placed on the machine by the manufacturer.

Plaintiff's expert Harold Erlich opines that the Maren baler involved in plaintiff's accident "was defectively manufactured in 1973 and those defects were substantial factors in leading to and causing the accident...." (Erlich Affidavit, ¶ 6.) Erlich states that the ram cover was defective because: (1) the ram could be moved while the ejector door was open; (2) the ram cover was heavy and difficult to re-attach once removed; (3) Maren had an alternative design for the ram cover in 1973 that was safer, but did not apprise Gristede's; and (4) Maren failed to warn Gristedes of the hazard and dangers associated with operating the baler without a ram cover. As to the safety switch, Erlich finds it defective that: (1) the switch was an option, which led people to believe it was not necessary; (2) Maren also offered for sale an automatic baler design that did not have a comparable safety switch; and (3) Maren failed to provide adequate safety instructions. As to the lever/spring/hydraulic system through which the operator maneuvered the ram, Erlich finds it defective that Maren failed to properly test the system for life expectancy and service benchmarks and failed to provide adequate warnings or instructions. Erlich concludes that whatever changes were made to the baler were "within Maren's own design parameters" and were foreseeable.

IV. Conclusions of Law

A. Applicable Legal Standards

To obtain summary judgment, movant must establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. Zuckerman v. New York, 49 NY2d 557, 562-563 (1980). Once movant has met the initial burden, the burden shifts to the party opposing the motion to 'show facts sufficient to require a trial of any issue of fact. CPLR 3212 (b); id. at 560. It is well settled that "the drastic remedy of summary judgment is appropriate only where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact." Piccirillo v Piccirillo, 156 AD2d 748, 750 (2d Dept. 1989); Hantz v Fishman, 155 AD2d 415, 416 (2d Dept. 1989). Moreover, the parties' competing contentions must be viewed "in a light most favorable to the party opposing the motion." Lakeside Constr. v Depew & Schetter Agency, 154 AD2d 513, 515-515 (2d Dept. 1989). See Liriano v. Hobart Corp., 92 NY2d 232 (1998).

Plaintiff has abandoned his claims of breaches of implied and express warranties. However, he continues to argue negligence and strict products liability, the latter premised on theories of defective design and failure to warn. Complaint, First and Third Causes of Action. Under New York law, a manufacturer may be held liable for placing into the stream of commerce [*6]a defective product that causes injury. A product can be defective by reason of a manufacturing flaw, an improper design or a failure to provide adequate warnings for the product's use. Liriano v Hobart Corp., 92 NY2d 232, 237 (1998). The manufacturer can be held strictly liable for injuries caused by a defective product regardless of privity, foreseeability or the exercise of due care. Id. See also Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107 (1989).

An action sounding in negligence against a manufacturer will lie where a plaintiff can show that the manufacturer was responsible for a defect that caused an injury, and that the manufacturer could have foreseen the injury. Robinson v. Reed-Prentice Div. of Package Machinery Co., 49 NY2d 471, 480 (1980) (manufacturer was not liable in negligence where it used reasonable care in designing plastic molding machine). A manufacturer may not, however, be held liable in either negligence or strict products liability for a design defect where, after a product leaves his possession and control, the product is modified so that it is both "substantially altered" and the modification is the "proximate cause" of plaintiff's injuries. Robinson, 49 NY2d at 475; see also Frey v. Rockford Safety Equipment Co., 154 AD2d 899 (4th Dep't 1989). "Material alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature, however foreseeable that modification may have been, are not within the ambit of a manufacturer's responsibility." Robinson, 49 NY2d at 481.

Six years after Robinson, the substantial modification defense was qualified in Lopez v. Precision Papers, Inc., 107 AD2d 667, 669 (2d Dept. 1985), aff'd, 67 NY2d 871 (1986). Plaintiff in Lopez was operating a forklift without an overhead safety guard that had been removed, when a large roll of paper fell from a wooden pallet on the forklift and struck him on the head. The Court held that because the safety guard on the forklift had been purposefully designed to permit easy removal, there was a legitimate jury question as to the scope of the forklift's intended purpose. Lopez, 107 AD2d at 667. See also Rios v. Rockwell Int'l Corp., 268 AD2d 279, 280 (1st Dept. 2000) (removal of safety guard that "was designed to be removed from the [printing] press with relative ease to facilitate periodic press maintenance" did not constitute material alteration).

In addition to a strict liability theory based on design flaws, a manufacturer also may be strictly liable if it fails to warn purchasers of the particular dangers a product may present. In yet another qualification to Robinson, the Court of Appeals in Cover v. Cohen, 61 NY2d 261, 274-75 (1984), concluded that a manufacturer can be liable on a failure to warn theory even after the product is sold based on "dangers in the use of a product which come to his attention after manufacture or sale, through advancements in the state of the art with which he is expected to stay abreast, or through being made aware of later accidents involving dangers in the product of which warning should be given to users." Id. The Court then found in Liriano v. Hobart Corp., 92 NY2d 232, 243 (1998), that "manufacturer liability for failure to warn may exist in cases where the substantial modification defense would preclude liability on a design defect theory." At issue in Liriano was a manufacturer's liability for failure to warn of the dangers of operating a meat grinder from which the safety guard had been removed. Contrasting the role of a substantial modification in a design flaw claim and a failure to warn claim, the Court noted: "The factors militating against imposing a duty to design against foreseeable post-sale product modifications are either not present or less cogent with respect to a duty to warn against making such modifications . . . ." Id. at 239. The Court, however, was careful to impose limitations upon [*7]the reach of its decision by emphasizing that "a safety device built into the integrated final product is often the most effective way to communicate that operation of the product without the device is hazardous. Thus, where the injured party was fully aware of the hazard through general knowledge, observation or common sense, or participated in the removal of the safety device whose purpose is obvious, lack of a warning about that danger may well obviate the failure to warn as a legal cause of an injury resulting from that danger . . . . Thus, in appropriate cases, courts could as a matter of law decide that a manufacturer's warning would have been superfluous given an injured party's actual knowledge of the specific hazard that caused the injury. Id. at 241 (internal citations omitted).

Wrapping up this brief overview of the law in New York on this area, causation is an essential element of each of these causes of action. As the Court of Appeals has held, an essential element of a product liability claim is that the alleged product defect "was a substantial factor in bringing about plaintiffs' injuries." Velez v. Craine & Clarke Lbr. Corp., 33 NY2d 117, 122 (1973). Negligence claims require proof of an injury "proximately resulting" from a breach of duty. Solomon v. City of New York, 66 NY2d 1026, 1027 (1985). Similarly, a failure-to-warn theory in a product liability case involving a prescription drug requires the plaintiff to "prove that the drug caused her injury and that the manufacturer breached a duty to warn of the possibility that the injurious reaction might occur." Lindsay v. Ortho Pharm. Corp., 637 F.2d 87, 90-91 (2d Cir. 1980) (applying New York law). Moreover, where the plaintiff proceeds on a theory of failure to warn, courts in New York treat negligence and strict liability claims as "equivalent." Wolfgruber v. Upjohn Co., 72 AD2d 59, 62 (4th Dep't 1979), aff'd, 52 NY2d 768 (1980).

B. Application of Law to Undisputed Facts

Maren has met its burden in showing that under the undisputed facts of this case, Plaintiff is not entitled to judgment as a matter of law under either a claim for negligence or a claim for strict liability. The deposition testimony, exhibits, and the affidavit of Maren's expert James K. Sprague establish that the baler at issue was originally designed with redundant, integrated safety features that would have prevented Plaintiff's injury if left intact. Under these circumstances there was no defect. Maren s "purposeful design choice" was one that ensured the safety of the machine's operator and did not present "an unreasonable danger to the user." Robinson, 92 NY2d at 238 Plaintiff has not submitted sufficient evidence to raise a material issue of fact on this element. Plaintiff's proof is devoid of industry standards at that time, and does not indicate that the original design by Maren was either patently or latently dangerous.

Plaintiff s expert concludes that the baler was defective because certain features, such as the spring controlling the lever, would wear out, which could result in the baler being operated in a manner that would permit the ram to move without the operator having to hold the lever. He opines that there also was evidence that Maren instructed buyers to remove the ram cover daily for cleaning behind the ram, and it was difficult to remove and replace the ram cover. Plaintiff argues that Maren anticipated that buyers would abandon using the ram cover because of this difficulty, and points to Maren's subsequent design change to make the ram cover easier to remove and replace. These facts, however, viewed collectively in the light most favorable to plaintiff, are not sufficient to preclude summary judgment on the issue of defective design. [*8]

Even assuming that Maren s design of the ram cover was not sufficiently safe at the time of sale, the ram cover was only one of the safety devices designed into the baler by Maren. The key safety devices were the mercury safety switch and the control valve, both of which were designed to stop the crushing mechanism and, thereby, protect operators from injury even if the ram cover had been removed. It was undisputed that the buyer of this baler apparently used it without incident for approximately thirty years before Plaintiff unfortunately was injured. The proximate cause of Plaintiff's injuries was the alteration and modification of the baler to disable these key safety devices, which if left intact would have protected him. This is precisely the scenario contemplated by the Court of Appeals in Robinson. Robinson, 49 NY2d 471 (1980).

The baler Plaintiff operated for eleven months was no longer the machine that Maren had designed, manufactured and sold to Gristedes in 1973. That machine originally had a mercury safety switch that cut electrical power if the feeder door was open. That safety switch had been removed from the machine Plaintiff was operating, so that it continued to function even though the door was open and allowed access to the inside of the machine, and the crushing mechanism, while it was operating. In addition, the machine Maren sold had a control valve that stopped the crushing mechanism if the operator took his or her hand off of the lever that moved the crushing arm, or the "ram" up and down. The machine Plaintiff was operating had been altered so that the crushing mechanism continued to work, with the ram continuing to go up and down crushing boxes, after the operator had let go of the lever. Both changes required substantial modifications to the machinery, including removal of bolted and welded parts, and rewiring. Moreover, the "feeder door" of the baler had been folded down and painted over, allowing for constant access to the crushing mechanism while it was operating, and the ram cover had been removed, allowing for contact with the ram while it was moving. These substantial alterations, and not any defect in the original design, were the proximate cause of Plaintiff's injuries, thus precluding Maren's liability for defective or negligent design. See Robinson, 49 NY2d at 480 (finding that employer's willful destruction of functional utility of safety gate on plastics molding machine "may not fall on the manufacturer"). See also Barnes v. Pine Tree Mach., 261 AD2d 295 (1st Dep't 1999) (removal of safety guards from machine after it was sold to worker's employer constituted subsequent modification).

Plaintiff argues, and his expert opines, that Maren knew, anticipated or should have known or anticipated that the baler would be altered to bypass the safety mechanisms. These conclusions are based on testimony, affidavits and exhibits showing that Maren had other baler models that did not include comparable safety devices. It is irrelevant that Maren offered less safe alternative designs of its baler for purchase in 1973. It is the design of the baler purchased by Gristedes and the subject of this lawsuit that is being scrutinized. In fact, is it counterintuitive to argue that Gristedes would have purchased a safer baler only to subsequently make it less safe, when it could have purchased a less safe model from the outset. Plaintiff makes this argument in an attempt to bring this case within the exception to the modification preclusion of negligence and strict product liability, as set forth in Lopez v. Precision Papers, Inc., 107 AD2d 667, 669 (2d Dept. 1985), aff'd, 67 NY2d 871 (1986). That case does not apply here because, unlike the safety guard in Lopez, Maren did not purposefully design the baler's safety system to permit its easy disengagement. Although the ram cover was removable, and foreseeability by Maren that it would be permanently removed due to the degree of difficulty in replacing it is disputed, that [*9]issue need not be resolved where the safety system as a whole worked to protect the operator by shutting down the machine when the feeder door was open, or when the operator let go of the lever. The control valve and the mercury safety switch were integrated into the machine, and their disengagement required rewiring and additional, substantial efforts. This was hardly the easy, foreseeable disregard for a safety mechanism that the Lopez Court was discussing.

Finally, Plaintiff argues that Maren is liable under a "failure to warn" theory of strict liability. Summary judgment is equally appropriate as to this theory because the danger of operating a crushing machine that continued to run with the feeder door open, the crushing arm exposed, and while the operator could move freely about, is open and obvious. Maren cites the case of Scardfield v. Telsmith, Inc., a Division of Astec Industries, Inc., 267 AD2d 560 (3d Dept.), appeal den., 94 NY2d 761 (2000), in support of this proposition. In Scardfield the Court found with respect to a gravel washer, "we cannot disagree that the risk of placing one's hand near an operating gear is an obvious one." Id. at 563. It is equally true that running a box crushing machine on automatic without a safety door, feeding boxes through a large opening in the machine while the crushing rod is moving up and down, walking on a wet floor near the machine while it is in crushing mode and putting one's arm in the way of the moving crushing rod, is obviously dangerous.

Maren has not presented overwhelming evidence that it provided specific warnings that would have alerted operators of the baler that running it without the original safety devices would have been dangerous, but the submitted evidence does suggest that such warnings were provided. There was evidence that when Maren sold the baler there was a sticker on the machine warning that it should not be run with the feeder door open. In any event, this fact is nullified by the undisputed facts that when Plaintiff was hired the baler had been modified to bypass the safety features and had been painted inside and out, so any sticker would have been entirely obscured. As the Liriano Court found, "when a warning would have added nothing to the user's appreciation of the danger, no duty to warn exists as no benefit would be gained by requiring a warning."92 NY2d at 243. Moreover, there is overwhelming undisputed evidence that Maren's operating manual contained provisions designed to warn against, and prevent, operation of the baler without the safety mechanisms in place. Maren neither serviced nor maintained the machine, jobs that Gristedes farmed out. There is no evidence that Maren knew or was notified about any of the modifications. Instead the evidence shows that Gristedes employees and/or contractors implemented the modifications and knew exactly how dangerous they were, yet allowed Plaintiff to run the baler regardless, and without providing him with any warning. As observed by the Court in Vergara v. Scripps Howard, Inc., 261 AD.2d 302, 304 (1st Dept.), appeal den., 94 NY2d 757 (1999), where the employer's negligence in removing a portion of a guard fence resulted in a worker being pulled into press machinery at the New York Times, "[a] defendant can hardly have a duty to warn about a hazard of which it is unaware." In Vergara the Court granted summary judgment for the defendant successor to the manufacturer of the equipment. Here, this Court grants summary judgment in favor of Maren, who had no notice of the multiple modifications that caused Plaintiff's injuries.

Accordingly, it is [*10]

ORDERED that Maren Engineering Corp.'s motion for summary judgment against Plaintiff as to all causes of action is granted, the action against it and its third party action against Namdor, Inc. are dismissed, and it is further

ORDERED that the remaining causes of action against the other defendants are severed and shall continue, and it is further

ORDERED that the Clerk shall enter judgment accordingly.

The foregoing constitutes the decision and order of the Court.

Date: September 24, 2007_______________________________

New York, New YorkSHIRLEY WERNER KORNREICH

ACTING SUPREME COURT JUSTICE

.