        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1418
CA 12-01159
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


DONNA STRZELCZYK AND THOMAS STRZELCZYK,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

NEIL PALUMBO, TAMMY PALUMBO,
DEFENDANTS-RESPONDENTS,
AND SATURN OF ROCHESTER, INC., DOING BUSINESS
AS SATURN OF WEST RIDGE, DEFENDANT-APPELLANT.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (ARTHUR A. HERDZIK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

CAMPBELL & SHELTON LLP, EDEN (R. COLIN CAMPBELL OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered March 2, 2012. The order, among other things,
denied in part the motion of Saturn of Rochester, Inc., doing business
as Saturn of West Ridge, for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of the motion
with respect to the claim for breach of express warranty and
dismissing that claim and as modified the order is affirmed without
costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
personal injuries sustained by Donna Strzelczyk (plaintiff) in an
accident caused by an alleged defect in the antilock brake system
(ABS) of an automobile owned by defendant Tammy Palumbo, operated by
defendant Neil Palumbo, and purchased from Saturn of Rochester, Inc.,
doing business as Saturn of West Ridge (defendant). Defendant moved
for summary judgment dismissing the amended complaint against it on
the ground that plaintiffs failed to establish that the ABS defect
existed at the time the vehicle was sold to Tammy Palumbo, and Supreme
Court granted the motion in part by dismissing the negligence causes
of action against defendant. Contrary to the contention of defendant,
the court properly denied its motion with respect to the cause of
action based on strict products liability and the claim based on
breach of implied warranty. “A plaintiff in a products liability
action need not establish the precise nature of the defect in order to
make out a prima facie case . . . The existence of a defect may be
inferred from the circumstances of the accident and from proof that
                                 -2-                          1418
                                                         CA 12-01159

the product did not perform as intended” (Landahl v Chrysler Corp.,
144 AD2d 926, 927). The Palumbos’ “account of the car’s performance .
. . after it was purchased and the description of the manner in which
the accident occurred tend to establish that the accident was the
result of a [defect in the ABS sensor]” (id.). Plaintiffs also
submitted an expert affidavit demonstrating that the ABS defect caused
the accident. Further, the deposition testimony of defendant’s former
employee and owner and defendant’s service records establish that the
left rear ABS sensor was defective in a way that would cause the ABS
to activate at inappropriate times. Defendant failed to meet its
burden of “establishing that plaintiff’s injuries were not caused by a
manufacturing defect in the product” (Brown v Borruso, 238 AD2d 884,
885), and instead “merely focused on the claimed deficiency in
plaintiffs’ proof” (Landahl, 144 AD2d at 927).

     As plaintiffs correctly concede, however, the court erred in
denying that part of defendant’s motion with respect to the claim
based on breach of express warranty because the contract explicitly
disclaimed any express warranties on behalf of defendant (see Cayuga
Harvester v Allis-Chalmers Corp., 95 AD2d 5, 19). We therefore modify
the order accordingly. Finally, we reject defendant’s contention that
a separate claim against “Saturn of West Ridge” should be dismissed.
The caption has been amended to reflect that “Saturn of Rochester,
Inc., doing business as Saturn of West Ridge” is the sole remaining
defendant aside from the Palumbos, and there is no “separate claim”
against Saturn of West Ridge.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
