This motion by third-party defendant Lewistown Manufacturing, Inc., ("Lewistown") for summary judgment dismissing the plaintiff's complaint, the third-party complaint and all cross-claims against it is granted. Cross-motion by defendants Nate Nate Metal Craft, Barzel Iron Works, Inc., and Metal Craft by N Barsily, Inc., (collectively, "Metal Craft") for summary judgment dismissing all claims against them is granted. Cross-motion by defendant, third-party plaintiff Harding Steel, Inc., ("Harding") for summary judgment dismissing plaintiff's complaint against it, granting summary judgment in its favor against third-party defendant Lewistown, and granting summary judgment on Harding's cross-claims against defendant Metal Craft, is granted to the extent that plaintiff's complaint against it is dismissed.

On September 16, 1998, plaintiff was employed by fourth-party defendant MD Parking Machine Specialists ("MD") and engaged in the assembly of parking machines for the stacking of vehicles three-high in a parking lot. Plaintiff, with two other employees, was attempting to raise and level the top platform of one of the machines with the use of a ratcheting device and were standing on top of the platform they were attempting to raise. As soon as all three men applied force to the ratchet, one side of the platform collapsed and the three men fell approximately fifteen feet to the ground. Plaintiff suffered a dislocated shoulder and broken bones in his arm. He testified that, after falling, he observed two unpainted lift rods broken near their ends where they were threaded (Deposition testimony of Miguel Reyes, September 25, 2002 at 59.)

Plaintiff commenced this products liability suit against Harding, the company that purchased the subject machines for distribution to the parking lot owner, and Metal Craft, a company that had manufactured other parking machines for Harding. The complaint alleged negligent design, manufacture, assembly, testing, inspection, distribution, sale, marketing, failure to warn, breach of express and implied warranty and res ipsa loquitor. Harding impleaded Lewistown, the manufacturer and supplier of the subject machines. Lewistown, in turn, impleaded plaintiff's employer, MD, and Harding's production manager, Shlomo Kadosh ("Kadosh"). Neither MD nor Kadosh have appeared in this action. In answers to interrogatories, plaintiff stated he was not claiming a defective design, but rather that "[t]he product was improperly and defectively manufactured in that the steel rods were not able to withstand the weight of the lift as was intended due to the threads of the rods being cut to [sic] deep."

Plaintiff filed a Note of Issue and certified that discovery was complete. Lewistown then made the instant motion for summary judgment arguing that plaintiff cannot make a prima facie case that the rods were defective or that Lewistown fabricated them in any event. Metal Craft cross-moved for summary judgment arguing there was no competent evidence it had fabricated the allegedly defective rods either. Harding also cross-moved for summary judgment dismissing plaintiff's complaint, or granting it summary judgment on its third-party claim and cross-claims against Lewistown and Metal Craft.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing a motion for summary judgment must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue [*2]of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]). Evidence may not be submitted to a jury which requires the jury to speculate. (Smith v. Wisch, 77 AD2d 619 [2nd Dep't 1980]); see also Detone v. Bullit Courier Service, 140 AD2d 278 [1st Dep't] lv to app. denied 73 NY2d 702 [1988] [finding of negligence may not be based on speculation]). "If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion" (Civil Practice Law and Rules ["CPLR"] § 3212[c]).

A manufacturer who places a defective product on the market which causes injury may be liable for the ensuing injury (Liriano v. Hobart Corp., 92 NY2d 232 [1998]). The defect may be a manufacturing flaw, a defective design or an inadequate warning for the use of a product (id.). The manufacturer's duty does not extend to designing a product that is impossible to abuse or one whose safety features may never be circumvented (Robinson v. Reed-Prentice Div., 49 NY2d 471 [1980]). "Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury (cites omitted)" (Schwartz v. Macrose Lumber & Trim Co., 29 AD2d 781 [2nd Dep't 1968] aff'd 24 NY2d 856 [1969]).

The doctrine of res ipsa loquitor allows an inference of negligence to be drawn solely from the happening of an occurrence to create a prima facie case of negligence (Dermatossian v. New York City Transit Auth., 67 NY2d 219 [1986]). The doctrine recognizes that some accidents, by their very nature, would not happen in the absence of negligence (id.). Application of the doctrine requires that (1) the event be of a kind which ordinarily does not occur in the absence of negligence, (2) the injury be caused by an instrumentality within the exclusive control of the defendant and (3) cannot have been caused by any voluntary action or contribution on plaintiff's part.

In support of its motion for summary judgment, Lewistown offered plaintiff's response to supplemental interrogatories, deposition testimony by the plaintiff, an affidavit by Vince Snyder, deposition testimony of Vince Snyder and Phillip Harding, a letter by Marc Drath to Phillip Harding, photographs, invoices and a copy of Harding's warranty of the parking machines. Plaintiff's answer to interrogatories was as set forth above, in other words, alleging the negligence of defendants to be threads on a rod in the parking machine that had been cut too deep, thus weakening the rod.

Plaintiff testified that the original rods on the machines were painted blue, but that the rods that broke were unpainted and a little rusty (Deposition of Miguel Reyes, November 30, 2004 at 23-25). Twelve or fifteen unpainted rods were delivered to the work site after the original parts came (Id. at19-21). Plaintiff did not know why (Id. at 20-21). At the time of his accident, all the parts of the machines had been assembled but they needed to be adjusted (Id. at19, 47). Adjusting meant leveling the platforms by adjusting cables at the rear of the machine (Id. at 47-48). The machine that broke was the last one that needed adjusting (Id. at 48). Plaintiff did not know why the machine broke (Id. at 55).

Vince Snyder stated in his affidavit, dated March 15, 2006, that he was the general manager of Lewistown, a metal fabricator. In 1997 Kadosh, Harding's production manager, designed a parking machine and asked Lewistown to manufacture the parts to his specifications. [*3]Lewistown made the parts and delivered them to the designated site. All the lift rods were painted blue. Lewistown was not asked to make additional or replacement rods before the date of the accident.

Vince Snyder testified that, after the accident, his company received an order for 10 lifting tubes or rods from Phillip Harding (Deposition of Vince Snyder, December 15, 2004 at 39-40). When Snyder asked why more rods were needed, Phillip Harding told him the installer, MD, had informed him some rods had been damaged and MD needed replacements (Id. at 42). After the machines were installed, the parking lot owner complained the locking mechanism was not working properly (Id. at 50). Snyder ascertained that the problem was the machines were not properly adjusted, which was causing the locking mechanisms to stick (Id. at 50-51). There was too much "travel" in the lock and the release angle was digging into the lock (Id. at 51). This could cause the machines to hang up and not come down (Id. at 52). It would not cause a machine to collapse (Id. at 52). The release angle engaged and disengaged a lock bar that locked into teeth inside the mechanism (Id. at 53). If the teeth failed, however, the machine would fall (Id. at 53).

Phillip Harding testified that he was an employee of Harding Steel, Inc. Harding hired MD to install the parking machines, but no longer uses that company because of their prices and because of "safety concerns" (Deposition of Phillip Harding, May 25, 2004 at 36). Before the accident, he was told some rods were either missing or damaged (Id. at 46). He believed he was told by Kadosh (id.). Phillip Harding directed someone to contact Lewistown for the replacements, but Lewistown did not end up making the rods (Id. at 43). They were made by Metal Craft, according to what Phillip Harding was told by either Kadosh or MD (id.). All the information Phillip Harding received was from MD or Kadosh (Id. at 60). Marc Drath from MD told Phillip Harding that the cause of plaintiff's accident was a telescopic rod (Id. at 33). Marc Drath said he was keeping the rods that broke (Id. at 34).

A letter from Marc Drath to Phillip Harding, dated September 16, 1998, informed Phillip Harding in writing of the plaintiff's accident and added the following:

Upon my inspection of the 2nd lift in the front row, I found that

the new telescopic rods were the cause or this accident. As you

know Shlomo Kadish [sic] who is the production manager, hired Nat

[Metal Craft] to manufacture these new telescopic rods. Nat owns

a steel fabricating shop in Brooklyn. Nat manufactured 10 of these

telescopic rods and had them delivered to sight [sic] where they

were installed on the machine in question.

On the machine in question the two rear rods were produced by

Nat and the two front rods were produced elsewhere. The two

rear black rods broke and the two blue front rods stayed intact.

On the top of the telescopic rods where it was threaded it appeared

that the thread was cut to [sic] deep. The steel rod was not strong

enough to support the weight of two platforms and two men. The

threading of the telescopic rod is exactly where the rod broke. I

am 100% certain that if it were not for these defective rods this [*4]

accident would never have occurred.

In support of its cross-motion for summary judgment, Metal Craft offered deposition testimony of the plaintiff, of Nathan Bornstein and Marc Drath and an affidavit by Marc Drath. Plaintiff testified that he was using a device with a lever and two hooks on it to adjust the parking machine at the time of the accident (Deposition of Miguel Reyes, September 25, 2002 at 34-35). All three men were applying force to the lever trying to raise and level the platform when the accident happened (Id. at116). Plaintiff did not know whether the thread on the rods was damaged when the platform fell (Id. at 118).

Nathan Bornstein testified that he is self-employed under the name Metal Craft or Metal Craft by N Barsily, Corp. He is the sole proprietor (Deposition of Nathan Bornstein, May 6, 2003 at 5). He was shown an exemplar of the pipe that broke and testified that he could not have manufactured it because it has threading and his shop does not do threading (Id. at 58).

Marc Drath testified that he is the president of MD Parking Specialists (Pre-litigation Deposition of Marc Drath, November 30, 2000 at 4). The company installs and services parking machines (Id. at 5). Drath inspected the parts after they arrived and were taken off the truck. Id., pp. 9-10. He testified that there were no missing or damaged parts (Id. at 10). The machine that failed had just been installed and had not yet been tested (Id. at 20). When he heard about the accident, he went to the lot and inspected the machine that had partially fallen down (Id. at 25). After that, he went to the hospital to see the plaintiff and other injured workers (Id. at 26). That night or the next day, he went back and found the two broken telescopic rods (Id. at 30). He was keeping them at his home (Id. at 33). Kadosh told him that Metal Craft fabricated the rods that broke (Id. at 40).

In an affidavit dated February 20, 2001, Marc Drath stated that he was mistaken about the rods being at his home. The materials in his possession came from other jobs, not the installation of the subject machinery. He determined this after a thorough and diligent search. He did not know what happened to the subject rods.

In support of Harding's motion for summary judgment, it offered the affidavit of Phillip Harding who stated on March 26, 2006 that Kadosh was not an employee of the company at the relevant time, but rather an independent contractor employed by Kava, Inc. Harding relied on Kadosh to select and order rods according to his specifications and to approve shipment of the rods provided to MD to replace damaged ones. Harding did not provide drawings or specifications to Metal Craft or Kadosh. Harding did not alter or modify the lifts. Harding did not assemble them and had no opportunity to inspect the parts when they were shipped.

The moving parties have all demonstrated their entitlement to summary judgment dismissing the plaintiff's complaint. Lewistown has demonstrated its entitlement to summary judgment which third-party plaintiff Harding has not refuted with admissible evidence. It is undisputed that Lewistown made only blue rods. Plaintiff testified unequivocally that the rods that broke were not blue. Lewistown made replacement rods, but only after the accident. Harding's third-party action against Lewistown must, therefore, be dismissed, as well as Lewistown's fourth-party action against Kadosh; Kava, Inc., and MD.

Metal Craft has demonstrated its entitlement to summary judgment which the plaintiff has not refuted with admissible evidence. While there is an issue of fact as to who fabricated the subject rods, Nathan Borenstein's unchallenged testimony is that his shop did not have the [*5]equipment to do threading on pipes, did not do threading and could not have fabricated the subject rods. The only evidence to the contrary is hearsay: Marc Drath testified he only knew the unpainted rods came from Metal Craft because Kadosh told him so. Kadosh has not appeared in the action and has not been deposed. The other witnesses who testified the subject rods came from Metal Craft received that impression from either Kadosh or Marc Drath.

More importantly, plaintiff has not produced the failed rods and there is no competent evidence to show failure of the rods caused plaintiff's accident. No accident expert has inspected them. Marc Drath thought he had the broken rods at home, but what he thought were the rods turned out to be other machine parts from other jobs. Plaintiff testified that he and two other workers were applying force to a lever attached to the parking machine when it collapsed. Plaintiff could not rule out the possibility that the rods broke because the platform was collapsing. Vince Snyder testified he was made aware after the accident of a problem the operator of the machinery was having and determined the cause was improper adjustment of the machinery by Marc Drath's employees. It is possible the platform collapsed because of plaintiff's improper methods of adjustment. In any event, plaintiff cannot make out a prima facie case against Metal Craft or anyone else for exposing him to a defectively manufactured product when there is no evidence of defect other than the unsupported opinion of an interested person who has admitted being mistaken about his earlier claimed possession of the broken rods. Plaintiff's action against Metal Craft must therefore be dismissed.

For the same reason, the action and all cross-claims against Harding must be dismissed. Without evidence, other than hearsay, that Harding distributed or warranted a defective product, plaintiff cannot make a prima facie case against it.

After search of the record, the complaint against non-moving defendant Bay Windows Shade Co. is also dismissed. The complaint against this defendant is for negligent design, testing, manufacture, assembly, promotion, distribution, sale, marketing, labeling and advertising. Since plaintiff is unable to produce evidence of a defective product, the action against this defendant must also be dismissed.

Movant is directed to serve a copy of this order on the Clerk of Court who shall dismiss the action in its entirety.

This constitutes the decision and order of the court.

Dated: February 14, 2007

Bronx, New York

_______________________________

Betty Owen Stinson, J.S.C..