Upon the foregoing papers and oral argument, the defendants Arai Helmet Americas, Inc., f/k/a Arai Helmet Ltd., Inc., Arai Helmet, Ltd., ("Arai") and Western Power Sports, Inc., ("Western")(collectively, "Defendants") move for an order pursuant to CPLR 3212(b) and 3211(a)(7), for summary judgment and dismissal of all causes of action asserted against them with prejudice. The plaintiff Nelson Narvaez ("Plaintiff") opposes the motion.

This matter arises out of an alleged motor vehicle accident that occurred at or around 1:00AM on September 8, 2007. Plaintiff alleges that at the time of the accident, he was wearing an Arai-branded "Astral" model helmet and riding a motorcycle near Lehman College in the Bronx when he collided with a Mazda vehicle owned and/or operated by co-defendants Ricky Wadsworth and George Quintana. Plaintiff claims that as a result of the impact, his helmet became dislodged from his head, causing him to sustain injuries.

Plaintiff testified that he purchased the helmet from a private seller in Long Island in 2006. The physical makeup and condition of the helmet is not in dispute. The helmet is a "full face" helmet that contains a retention system to secure it to the wearer's head. The retention system consists of a black nylon chin strap made up of two portions of unequal length. The shortened portion of the strap has two metal "D-rings" along with the "female" half of a red plastic snap fastener positioned on the strap directly above the "D-rings," and a red elongated release tab on the lower D-ring. The other, longer portion of the strap has the "male" half of the red plastic snap fastener. The helmet can be secured by looping the nylon straps through the "D-rings." Plaintiff testified that when he wore the helmet, however, he only joined the two straps under his chin using the red plastic snap mechanism, and he never used the "D-rings" because the helmet felt snug and secure using only the plastic snaps. Plaintiff believed that using only the plastic snaps was a proper way to secure the helmet to his head.

Following this accident Plaintiff commenced this action against, inter alia, Defendants, asserting causes of action sounding in negligence and strict products liability. Plaintiff broadly alleges that the helmet was defectively designed and manufactured, and contained insufficient warnings at the time it left Defendants' manufacturing facilities. Plaintiff further asserts causes of action for breach of express and implied warranties, negligent misrepresentation, fraud, and punitive damages.

Defendants now move to dismiss all causes of action asserted against them pursuant to CPLR 3212(b) and 3211. Defendants argue that the danger of wearing this helmet without using the "D-rings" was open and obvious, and therefore they had no duty to warn Plaintiff of that danger, or to design the helmet so as to eliminate that danger. In addition, the record reveals that Plaintiff had substantial prior experience with using motorcycle helmets, and therefore he knew or should have known about the risks of failing to properly secure the helmet. Defendants thus contend that the absence of any warning could not have been the legal cause of Plaintiff's injuries.

Defendants further argue that Plaintiff's Second Amended Complaint and discovery responses fail to adequately state a claim predicated upon a design defect or manufacturing defect. The complaint only makes bare, conclusory allegations, and the discovery responses only allege that the helmet failed to properly indicate to the user that he or she needed to use the "D-rings" to secure the helmet. Defendants argues that this is merely a "repackaged" failure to warn claim, and not a viable "design defect" claim. Regarding the "manufacturing defect" claim, Defendants state the Plaintiff seems to allege that the plastic snaps were not sufficiently strong to act as a retention system itself. Defendants argue, however, that the owner's manual indicated that the snap clip was not designed to be the primary retention system, and thus there is no defective manufacture of that snap or the straps. In addition, Defendants contend that Plaintiff's breach of express and implied warranty claims must be dismissed due to the open and obvious nature of the hazard, and the fact that any express warranty was not available to second-hand users like Plaintiff. Defendants further allege that Plaintiff's negligent misrepresentation and fraud claims must be dismissed as inadequately plead, and moreover, Plaintiff never relied on any statements made by Defendants when he made the decision to purchase and use the helmet. Finally, Defendants assert that Plaintiff's claims alleging that they are jointly and severally liable for his injuries based on their allegedly reckless misconduct must be dismissed because the [*2]underlying substantive claims of misconduct are not viable.

In opposition to the motion, Plaintiff argues that the record raises issues of fact as to whether Defendants knew that this helmet was unreasonably dangerous yet they failed to make a feasible, safer alternative. Plaintiff provides an affidavit and report from a professional engineer who inspected the helmet and reviewed Defendants' United States Patent application for the chin strap as well as other publically-available studies and reports. He opined that the helmet was defective with respect to both its design and the efficacy of its warnings. Specifically, the expert found that the positioning of the plastic snap fastener on the chin strap, directly above the double D-ring, can be misconstrued to be a part of the helmet's retention system. He further found that there was no warning on the helmet itself describing how to properly interlace the chin strap through the D-rings in order to protect the wearer's head. The only place where this information is found is in the owner's manual. The expert noted that in Defendants' patent application, Arai's principal indicated that users of the helmet could possibly misuse the retention system by bypassing the "D-rings," which is what happened in this case. The expert further referenced independent studies and other reports which found that improper strap use/ fastening of helmets are a foreseeable cause of reduced helmet effectiveness and ejection during dynamic loading. Plaintiff also points to deposition testimony from Arai's representative, who confirmed that Arai held discussions concerning misuse of helmet retention systems. He further confirmed that Arai never considered changing the design of the helmet and noted that all current models carry the same design. Plaintiff also asserts that Defendant has been involved in prior similar lawsuits in other jurisdictions involving the use of Arai helmets. Plaintiff contends that this evidence raises issues of fact as to whether Plaintiff's misuse of the helmet was not reasonably foreseeable.

Plaintiff's expert also asserted that a safer reasonable alternative design for this helmet was feasible by simply removing the snap fasteners on the straps so that they could not be mistaken as the primary retention system, by placing a warning label on the helmet itself directing the wearer how to properly use the chin strap, and by using an alternative method to secure the loose flapping end of the chin strap. The expert opined that a reasonable design/warning alternative would have offered a safer product and decreased the likelihood of this injury occurring. Based on all of the foregoing, Plaintiff argues that the dangers associated with by-passing the "D-ring" mechanisms was not so open and obvious so as to relieve Defendants' duty to offer a reasonably safer alternative design or adequate warnings.

Plaintiff further argues that his claims predicated upon breach of implied warranty, fraud, and misrepresentation must not be dismissed. Breach of implied warranty of merchantability and fitness remains viable in this personal injury action even without privity of contract between Plaintiff and Defendants. He further asserts that Defendants cannot use their own warranties to shield themselves from liability for their own negligent conduct. Plaintiff argues that his negligent misrepresentation and fraud claims are viable because Defendant's brochures and marketing materials promoted the virtues and quality of the Astrial helmet, and claimed that the helmet was suitable for both race champions and street riders alike. Plaintiff asserts that based on the findings of his expert, however, there is a huge disconnect between these claims and the actual condition of the helmet. He further alleges that the fact that the helmet was "Snell" and DOT-certified did not mean that helmet was reasonably safe.

In reply, Defendants first argue that the opposition papers must be disregarded as they [*3]were served after the submit-date had passed, and no excuse was given for the late service. Defendants argue that they have been prejudiced by this delay because they had little time to respond to Plaintiff's arguments as well as his previously-undisclosed expert witness. Defendants also allege that Plaintiff has engaged in nearly a decade of delay in this litigation, thus his failure to serve timely papers warrants a finding of default. Defendants also submit substantive arguments in response to Plaintiff's opposition papers. Those arguments have been reviewed and are addressed infra where necessary.

CPLR 3212

To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738 [1993]).

CPLR 3211

On a motion to dismiss pursuant to this section of the CPLR 3211(a)(7), a court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. DaimlerChrysler Corp., 292 AD2d 118 [1st Dept. 2002]). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (See Stendig, Inc. v. Thom Rock Realty Co., 163 AD2d 46 [1st Dept. 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 AD2d 205 [1st Dept. 1997][on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see, CPLR 3026). The court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory"(Leon v. [*4]Martinez, 84 NY2d 83, 87-88 [1994]). The motion should be denied if, from the pleading's four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law (McGill v. Parker, 179 AD2d 98 [1st Dept. 1992]).

Factual allegations normally presumed to be true on a motion pursuant to CPLR 3211 (a)(7) may properly be negated by affidavits and documentary evidence (CPLR 3211[a][1], Wilhemlina Models, Inc. v. Fleisher, 19 AD3d 267 [1st Dept. 2005]). When documentary evidence is submitted by a defendant, "the standard morphs from whether the plaintiff has stated a cause of action to whether it has one" (John R. Higgitt, CPLR 3211[a][7]: Demurrer or Merits - Testing Device?, 73 Albany Law Review 99, 110 [2009]). Dismissal is appropriate under these circumstances only where the documentary evidence flatly rejects a plaintiff's well-pleaded and cognizable claim, or "conclusively establishes a defense to the asserted claims as a matter of law" (Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 AD3d 128, 136 [1st Dept. 2015], citing Leon v. Martinez., 84 NY2d 83, 88 [1994]).

As an initial matter, this court will consider Plaintiff's allegedly untimely opposition papers and will decide the motion on its merits. While the opposition papers were served approximately one week after the return date of the motion, Defendants were not prejudiced by the delay, as they had the opportunity to, and did, submit reply papers to the motion, and thereafter appeared for oral argument to further respond to Plaintiff's opposition (see Serradilla v. Lords Corp., 117 AD3d 648, 649 [1st Dept. 2014]). While Defendants argue that they did not have a sufficient amount of time to respond to the opposition, they never requested an extension of time to do so, and their reply papers have been accepted by this court. Furthermore, this State strongly favors the disposition of matters on their merits and not on default (see Johnson-Roberts v. Ira Judelson Bail Bonds, 140 AD3d 509, 509 [1st Dept. 2016]).

***

Defendants argue that they are entitled to summary judgment and/or dismissal of Plaintiff's claims of negligence and strict products liability. "In accordance with a long-standing and evolving common-law tradition, a manufacturer of a defective product is liable for injuries caused by the defect" (see Matter of New York City Asbestos Litig., 27 NY3d 765, 785 [2016]). " Under New York's modern approach to products liability, a product has a defect that renders the manufacturer liable for the resulting injuries if it: (1) 'contains a manufacturing flaw'; (2) 'is defectively designed'; or (3) 'is not accompanied by adequate warnings for the use of the product'" (id.[internal quotations omitted]).

(1) Failure to Warn

"[A] plaintiff may recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its product" (Rastelli v. Goodyear Tire & Rubber Co., 79 NY2d 289, 297-98 [1992]). A plaintiff may recover against a defendant under [*5]this theory where he or she establishes: (1) that a manufacturer has a duty to warn; (2) against dangers resulting from foreseeable uses about which it knew or should have known; and (3) that failure to do so was the proximate cause of the plaintiff's injuries (see Colon ex rel. Molina v. BIC USA , Inc., 199 F.Supp.2d 53 [S.D.NY 2001] [applying New York law]). Manufacturers have a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known (Liriano v. Hobart Corp., 92 NY2d 232, 237 [1998]; Matter of New York City Asbestos Litig., 27 NY3d at 788-89). Manufacturers also have a duty to warn of dangers of unintended uses of a product provided these uses are reasonably foreseeable (id. [internal citations omitted]). However, manufacturers have no duty to warn against a hazard that is patently dangerous or poses an open or obvious risk (Liriano v. Hobart Corp., 92 NY2d 232, 241 [1998]). In other words,"there is no duty to warn product users of obvious risks and dangers - that being those risks and dangers which could have been or should have been appreciated by the user or that can be recognized as a matter of common sense" (Pigliavento v. Tyler Equip. Corp., 248 AD2d 840, 842 [3rd Dept. 1998]). "[W]hen 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. On the other hand, the open and obvious defense generally should not apply when there are aspects of the hazard which are concealed or not reasonably apparent to the user" (see Liriano, supra at 242). The "open and obvious" defense is "fact-specific" in nature and "in close cases it is easy to disagree about whether a particular risk is obvious," therefore "whether a danger is open and obvious is most often a jury question" (id.). "Where only one conclusion can be drawn from the established facts, however, the issue of whether the risk was open and obvious may be decided by the court as a matter of law" (id).

The "failure to warn" inquiry focuses on three factors: obviousness of risk from actual use of product, knowledge of the particular user, and proximate cause (Colon ex rel. Molina v. BIC USA , Inc., 199 F.Supp.2d 53, 85 [citing Liriano, 92 NY2d at 243). It is the plaintiff's ultimate burden to prove that a defendant's failure to warn was a proximate cause of the injury (see Sosna v. American Home Products, 298 AD2d 158 [1st Dept. 2002]).

In this case, Defendants argue that they are entitled to summary judgment on Plaintiff's "failure to warn" claim because "it is common sense that if a motorcyclist fails to secure his helmet, it will come free during a collision," and Plaintiff's failure to use available safety mechanisms to secure the helmet created the obvious danger that the helmet would detach. The proper inquiry, however, is whether it was open and obvious that the helmet would detach in an accident if the wearer only used the plastic snap mechanism and not the D-ring straps to secure the helmet to his head (see Liriano, supra at 241, citing Prosser and Keeton, Torts § 96, at 686—687 [5th ed.] [courts treat obvious danger as "a condition that would ordinarily be seen and the danger of which would ordinarily be appreciated by those who would be expected to use the product"][emphasis supplied]). On this record, there are issues of fact as to whether aspects of this hazard were "not reasonably apparent to the user" (id. at 242).

Plaintiff knew to keep his helmet on at all times while riding his motorcycle (Pl. EBT at 64-65). When he wore the helmet, however, Plaintiff would only use the plastic snaps that joined the straps under his chin. He never used the "D-ring" straps because the helmet felt snug, secure, and tight with only the snaps connected (id. at 25-27; 163-64). Plaintiff testified that he believed that using only the plastic snaps was a proper way to affix the helmet to his head (id. at [*6]164). Plaintiff did not state that he was aware of the danger of failing to use the D-ring straps. Plaintiff never noticed any warning on the straps concerning proper use of the retention system (id. at 164-65), and he never received the owner's manual and never saw it before this accident occurred (id at 64-65). The foregoing indicates that this particular user was not aware of the risk created by failing to use the D-ring strap. Contrary to the contentions found in Defendants' affirmation of counsel, this court cannot find as a matter of law that the "readily observable appearance and characteristic of the helmet and straps" made it obvious that Plaintiff needed to use the D-rings in order to properly secure the helmet. On this record, it is apparent that more than one conclusion can be drawn on the issue of whether or not the hazard was open and obvious which would negate Defendants' duty to warn of it.

Defendants contend in the alternative that even if the hazard was not open and obvious, the failure to warn was not a proximate cause of this accident because Plaintiff was an experienced motorcyclist who should have known that it was dangerous to improperly secure the helmet without using D-rings. Defendants allege that their failure, if any, to warn Plaintiff of the danger of failing to use the D-rings could not have caused this accident because he already knew or should have known of the danger, such that a warning would not have changed his behavior. This argument fails because it is not clear that Plaintiff "should have known" that failing to use the D-rings on this helmet was improper. While he may have been an experienced motorcyclist, Plaintiff did not testify that he was aware of the necessity of the D-rings as a part of the retention system, and he stated that the helmet felt secure and tight on his head using only the plastic snaps. Defendants would only be entitled to summary judgment on this ground by establishing that a "warning would have been superfluous given an injured party's actual knowledge of the specific hazard that caused the injury" (see Fisher v. Flanigan, 89 AD3d 1398, 1399 [4th Dept. 2011], quoting Liriano v. Hobart Corp., 92 NY2d at 241). Defendants point to no testimony or other evidence establishing that Plaintiff had actual knowledge of the hazard created by failing to use the D-ring strap. Defendants' citations to other litigation that involved helmets and D-ring straps, a dictionary definition, and a Wikipedia article fail to establish that the use of the straps on this particular helmet was "well-known" and "obvious" to Plaintiff or other users of this product.

Furthermore, in opposition to the motion, Plaintiff submits Arai's patent application regarding this helmet wherein its principal Michio Arai recognized that users of the helmet could misuse the retention system by bypassing the D-ring mechanisms. Arai's witness Hirohiko Kimura testified that Arai was aware of the possibility that users would improperly use the snap fasteners, and not the D-ring strap, as this helmet's primary retention element (Kimura EBT at 111-113; 116-117; 121; 131-33). Contrary to Defendants' contentions, this court finds that Arai's awareness of potential misuse of the retention system raises issues as to the "open and obvious nature" nature of the proper way to secure the helmet to the user's head. This matter is unlike the cases cited by Defendants, where the plaintiff encountered obvious risks and dangers by falling from an unguarded platform on a concrete truck (Pigliavento v. Tyler Equip. Corp., 248 AD2d 840, 842 [3rd Dept. 1998]), or failing to use a seat belt in a moving motor home (Fisher v. Flanigan, 89 AD3d 1398), or by placing his hands near an unguarded blade (see Cwiklinksi v. Sears, Roebuck & Co., Inc., 70 AD3d 1477, 1478-79 [4th Dept. 2010]). Plaintiff did have a history of using the helmet, but there is no indication that he was ever aware of the risk posed by [*7]only using the plastic snap to secure it to his head, and no evidence that he would not have heeded such a warning. Thus, Defendants have not established that their alleged failure to warn of this risk was not a proximate cause of this accident. At oral argument, Defendants asserted that warnings were irrelevant here because Plaintiff testified that he never read the labels inside of the helmet. However, Defendants' moving papers argued for dismissal of the "failure to warn" claim due to the alleged open and obvious nature of the danger and the fact that plaintiff, in his experience, either knew or should have known of the danger. Defendants did not contend entitlement to dismissal because Plaintiff would not have heeded a warning on the helmet. In light of the foregoing, this branch of Defendants' summary judgment/dismissal motion is denied.

(2) Design Defect

"'[A] defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce'" (see Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983][quoting Robinson v. Reed-Prentice Division of Package Machinery Co., 49 NY2d 471, 479 [1980]). In order to state a products liability claim predicated upon a defective design, a plaintiff must demonstrate that (1) the product as designed posed a substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and (3) the defective design was a substantial factor in causing plaintiff's injury (see Colon ex rel. Molina v. BIC USA , Inc., 199 F.Supp.2d 53 [S.D.NY 2001] [applying New York law][internal citations omitted]). For purposes of analyzing these claims, theories of strict liability and negligence are virtually identical (id). When analyzing whether or not a design defect exists, an inquiry must be made into such factors as "(1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes" (Denny v. Ford Motor Co., 87 NY2d 248, 257 [1995]).

In this case, Defendants first contend that the danger inherent to the design of the helmet was open and obvious and thus this claim must be dismissed. However, as noted supra, it was not obvious that only using the plastic snap mechanism to secure the helmet was improper. Furthermore, liability under a "design defect" theory is not precluded merely because a danger is obvious (see Micallef v. Miehle Co., Division of Miehle-Goss Dexter, Inc., 39 NY2d 376, 384 [1976]). The obviousness of the danger is only a factor to consider when evaluating whether a plaintiff exercised reasonable care (id. at 387).

Defendants next argue that Plaintiff has failed to adequately allege a defect in the design of the Arai helmet and its retention system. The complaint claims that the helmet was defective in design and manufacture because "lured motorcyclists, and particularly plaintiff herein, into a false sense of security when using said helmet, when in fact is was inadequate to protect its user from serious injuries which would result from its failure" (Second Amended Complaint at Par. [*8]118). In discovery responses, Plaintiff alleged that the design was defective because the D-ring fastener was close to the plastic snap fastener device which lured wearers to reasonably believe that either the D-ring or the plastic snap device could be used as a retention system. Plaintiff also claimed that a "safer alternative design" would have "employed a helmet retention system that adequately separated the 'D-ring' fastener from the end strap plastic snap fastener device (Response to Interrogatories at 21, 23).

Defendant argues that these allegations, even if true, do not support a design defect cause of action because the crux of the allegation is not a defect in design of the product, but a purported failure to indicate to him how to properly secure the helmet. In other words, he improperly repeats his failure to warn claims in the guise of a design defect claim. This court disagrees and finds that Plaintiff has adequately alleged the existence of a design defect in the helmet, independent of his claim that the helmet was defective because of its lack of warnings. The allegations found in Plaintiff's complaint and discovery responses, when broadly construed, adequately allege that the helmet as designed — taking into account the location of the straps and fasteners — posed a substantial likelihood of harm, that a reasonably safe alternative was available, and that the design of the product was a substantial factor in causing his injuries (see generally Voss v. Black & Decker Mfg. Co., 59 NY2d at 108-109). Furthermore, in opposition to the motion, Plaintiff submits an affidavit from an expert professional engineer Eliot Stern who examined the helmet and opined, among other things, that it was dangerously designed due to the presence and positioning of plastic snap fasteners, which could have been misconstrued as being a part of the helmet retention system when they were not. He notes that Arai's own patent application indicated that Arai was aware of this issue but never changed the design of the helmet. He alleges that a safer feasible alternative design was available, as Defendants could have, among other things, simply removed the plastic snap from both halves of the chin strap so that they could not be mistaken for the helmet's primary retention system. Plaintiff's contentions and submissions in opposition to the motion satisfy the elements of a "design defect" cause of action and are not merely reformulated or repackaged "failure to warn" claims. Defendants' moving papers, on this issue, fail to conclusively establish a defense to Plaintiff's design defect claim as a matter of law (Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 AD3d 128, 136; CPLR 3211[a][1]).

Dr. Stern's affidavit is admissible even though the expert was not previously disclosed (CPLR 3101[d]; see Kimberlee M. v. Jaffee, 139 AD3d 508, 509 [1st Dept. 2016]). Furthermore, the affidavit constitutes competent evidence. "An expert is qualified to proffer an opinion if he or she is 'possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable'" (O'Boy v. Motor Coach Industries, Inc., 39 AD3d 512, 513-14 [2nd Dept. 2007], quoting Matott v. Ward, 48 NY2d 455, 459 [1979]). Here, the expert stated that he has a Ph.D in Mechanical Engineering and has been involved in the field including design, manufacture, safety analysis, and warning efficacy for over thirty years, and has extensive experience in the design, development, manufacture, and testing of products. This demonstrates that he has the requisite knowledge and practical experience to render an opinion about the design of the product at issue, even assuming he does not have specific experience with helmets (see generally Price ex rel. Price v. New York City Housing Authority, 92 NY2d 553, 559 [1998]). Any allegedly improper [*9]legal conclusions rendered by the expert were not considered in deciding whether Plaintiff has adequately stated a "design defect" claim. Furthermore, Dr. Stern's non-legal opinion, that the helmet was defectively designed and a feasible alternative design is available, was appropriately based on his review of inter alia the patent documents and his own examination of the helmet. The lack of a certificate of conformity accompanying Dr. Stern's affidavit is not a fatal defect (see Matapos Technology Ltd. v. Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept. 2009]).

(3) Manufacturing Defect

In order to demonstrate a "manufacturing defect under either negligence or strict liability, a plaintiff must show that a specific product unit was defective as a result of 'some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction,' and that the defect was the cause of plaintiff's injury" (Colon ex rel. Molina v. BIC USA , Inc., 199 F.Supp.2d 53, 85 [citing Capara v. Chrysler Corp., 52 NY2d 114, 129 [1981]). A defectively manufactured product does not conform to its intended design, nor does it conform to the great majority of the products manufactured in accordance with that design (Capara, supra at 128). The "decisive issue" in a manufacturing defect case is the existence of the defect without regard to the care exercised by the manufacturer (id at 129). "To establish a claim based on a manufacturing defect, a plaintiff must prove that the product did not perform as intended and that it was defective at the time it left the hands of the manufacturer" (Fitzpatrick v. Currie, 52 AD3d 1089, 1090 [3rd Dept. 2008]). "In contrast, '[w]here a product presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to detailed plans and specifications, it is said to be defectively designed'" (see id., quoting Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479 [1980]).

In this case, Plaintiff's complaint generally alleges that existence of a manufacturing defect (see Second Amended Complaint at Par. 118), and his discovery responses allege that the helmet used inferior material in making the plastic snap fastener and using a plastic fastener that was weak and prone to fail and cause the helmet to be ejected upon impact. However, Plaintiff failed to claim that the product did not conform to its intended design, or that the materials used to make it were actually defective, or that the deficiencies of the helmet were due to some mishap in the manufacturing process or improper workmanship. Plaintiff's expert affirmation and report fails to allege that the helmet's manufacture deviated from Defendant's specifications or design. Absent such allegations, Plaintiff has failed to set forth a viable cause of action for defective manufacture (see Searle v. Suburban Propane Div. of Quantum Chemical Corp., 263 AD2d 335, 340 [3rd Dept. 2000]; CPLR 3211[a][7]).

(4) Breach of Express Warranty

To establish a prima facie product liability cause of action predicated upon a breach of express warranty, a plaintiff must prove that the defendant made a specific statement of fact or promise, and that plaintiff relied on that statement or promise (see Davis v. New York City Hous. Auth., 246 AD2d 575, 576 [2nd Dept. 1998]). In this case, deposition testimony establishes that [*10]he did not rely on any express writings or promises by Defendant before purchasing or using the subject helmet. Plaintiff testified that he purchased the helmet from a second-hand seller, and he never obtained the owner's manual (Pl. EBT at 64-65), and he never saw any advertisements for Arai helmets (id at 66). Plaintiff bought the helmet at the same time he was buying a motorcycle. He only bought the helmet because the seller had him try it on, and told him that he could take it along with the motorcycle (id). In opposition papers, Plaintiff "concedes the inapplicability" of his breach of express warranty claim.

(5) Breach of Implied Warranty

Defendants failed to carry their initial burden under either CPLR 3212 or 3211 with respect to Plaintiff's cause of action for breach of implied warranty. In a personal injury matter, contractual privity is not required to sustain this cause of action for breach of implied warranty (see Ross v. Alexander Mitchell and Son, Inc., 138 AD3d 1425, 1426 [4th Dept. 2016]; see Vanata v. Delta Intern. Machine Corp., 269 AD2d 175, 176 [1st Dept. 2000]; UCC 3-218). As noted supra, Plaintiff has adequately set forth a product liability cause of action predicated upon the existence of a design defect, and the alleged defect and/or danger associated with use of the product was not open and obvious. Plaintiff's complaint also adequately alleges that the helmet breached Defendants' implied warranty of merchantability (Second Amended Complaint, Fifth Cause of Action). Defendants' moving papers fail to establish as a matter of law that the helmet, as designed, was "fit for the ordinary purposes for which such goods are used" and thus did not breach the implied warranty of merchantability and fitness (see Denny v. Ford Motor Co., 87 NY2d 248, 258 [1995]; UCC 2-314[2][c]).

(6) Negligent Misrepresentations; Fraud:

"In order to make out a prima facie case of fraud, the plaintiff must show that there has been misrepresentation of material facts, falsity, scienter, reliance and injury" (see Standish-Parkin v. Lorillard Tobacco Co., 12 AD3d 301, 302-303 [1st Dept. 2004]). In this case, as noted supra, Plaintiff admitted at deposition that he purchased this helmet second-hand, and he never relied on any statements made by Defendants in making the decision to purchase and use it. Plaintiff therefore has no viable cause of action for fraud (see St. Patrick's Home for the Aged and Infirm. v. Laticrete Intern., Inc., 264 AD2d 652, 654 [1st Dept. 1999]). Plaintiff's negligent misrepresentation cause of action also fails on these grounds, as under the common law, a plaintiff must show that he or she detrimentally relied on a defendant's false statements (see Yanas v. Albany Medical Center Hosp., 294 AD2d 769, 771 [3rd Dept. 2002]). In addition, Plaintiff's cause of action for negligent misrepresentation must be dismissed because there was no contractual privity between himself and Defendants (see Soule v. Norton, 299 AD2d 827, 829 [4th Dept. 2002]). Plaintiff's opposition papers fail to raise an issue of fact with respect to contractual privity or Plaintiff's lack of reliance on allegedly false statements made by Defendants. These causes of action are therefore dismissed.

(7) Reckless Misconduct Claims; Punitive Damages

Plaintiff fails to specifically oppose that branch of the motion seeking dismissal of his claims alleging that Defendants engaged in wanton, reckless and outrageous conduct. Those claims are therefore dismissed as abandoned (see Saidin v. Negron, 136 AD3d 458 [1st Dept. 2016]). In any event, the record reveals that these claims are not viable under the circumstances of this case (see generally New York University v. Contintential, 87 NY2d 308, 315-16 [1995]).

IV. Conclusion

Accordingly, it is hereby

ORDERED, that the branch of Defendants' motion seeking dismissal of Plaintiff's causes of action alleging a manufacturing defect pursuant to CPLR 3211(a)(7) is granted, and that claim is dismissed, and it is further,

ORDERED, that the branches of Defendants' motion seeking dismissal of Plaintiff's causes of action alleging breach of express warranty, negligent misrepresentation, fraud, and the cause of action seeking punitive damages for wanton, reckless, and outrageous conduct, pursuant to CPLR 3212(b), are granted, and those claims are dismissed, and it is further,

ORDERED, that the remaining branches of Defendants' motion for summary judgment and/or dismissal are denied.

This constitutes the Decision and Order of this Court.