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

103
CA 13-01249
PRESENT: SMITH, J.P., LINDLEY, VALENTINO, AND WHALEN, JJ.


LUZ M. HOUSTON, AS ADMINISTRATRIX OF THE
ESTATE OF ROBERT M. HOUSTON, SR., DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MCNEILUS TRUCK AND MANUFACTURING, INC.,
DEFENDANT-APPELLANT,
MACK TRUCKS, INC., ET AL., DEFENDANTS.


COLUCCI & GALLAHER, P.C., BUFFALO (ANTHONY COLUCCI, III, OF COUNSEL),
FOR DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (James H.
Dillon, J.), entered April 18, 2013. The order, among other things,
denied in part the motion of defendant McNeilus Truck and
Manufacturing, Inc. for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion with respect to
the manufacturing defect claims and dismissing those claims and all
cross claims based on that theory against defendant-appellant and as
modified the order is affirmed without costs.

     Memorandum: In this negligence action in which plaintiff seeks
damages arising from the decedent’s death during a garbage truck
accident, McNeilus Truck and Manufacturing, Inc. (defendant), as
limited by its notice of appeal, contends that Supreme Court erred in
denying those parts of its motion for summary judgment dismissing the
claims and all cross claims against it for a manufacturing defect,
“conscious pain and suffering/preimpact terror,” and failure to warn.
We agree with defendant that the court erred in denying its motion
with respect to the claims for a manufacturing defect and we therefore
modify the order by dismissing those claims and all cross claims based
on that theory against defendant. Defendant met its initial burden by
establishing as a matter of law that the truck at issue was not
defective and that a manufacturing defect therefore did not cause
plaintiff’s injuries (see generally Ramos v Howard Indus., Inc., 10
NY3d 218, 222-224), and plaintiff failed to raise a triable issue of
fact in opposition (see generally Alvarez v Prospect Hosp., 68 NY2d
320, 324). Indeed, we note that, in its brief on appeal, plaintiff
                                 -2-                           103
                                                         CA 13-01249

failed to address defendant’s contention that the court erred in
denying that part of its motion.

     Contrary to defendant’s contention, however, we conclude that the
court properly denied those parts of its motion for summary judgment
dismissing the claims for conscious pain and suffering and preimpact
terror. Although “a plaintiff bears the ultimate burden of proof at
trial on the issue of conscious pain and suffering, on a motion for
summary judgment the defendant bears the initial burden of showing
that the decedent did not endure conscious pain and suffering” (Gaida-
Newman v Holtermann, 34 AD3d 634, 635; see Dmytryszyn v Herschman, 98
AD3d 715, 715-716; Haque v Daddazio, 84 AD3d 940, 941). With respect
to such a claim, it is well settled “that summary judgment should not
be granted where a party—such as defendant[] herein—[establishes] that
a decedent was unconscious when found at the scene and continued to be
unconscious thereafter, if the [evidence does] not establish the
decedent’s unconscious condition during the interval immediately after
the accident but before emergency help arrived” (Barron v Terry, 268
AD2d 760, 761). Here, although defendant established that decedent’s
coworker found him unresponsive a short time after the accident,
defendant failed to establish decedent’s condition in the short time
before that. Similarly, defendant failed to establish as a matter of
law that decedent did not experience preimpact terror (see generally
Lang v Bouju, 245 AD2d 1000, 1001).

     Contrary to defendant’s further contention, the court also
properly denied that part of its motion with respect to the claim for
failure to warn. “A manufacturer has a duty to warn against latent
dangers resulting from foreseeable uses of its product of which it
knew or should have known . . . A manufacturer also has a duty to warn
of the danger of unintended uses of a product provided these uses are
reasonably foreseeable” (Liriano v Hobart Corp., 92 NY2d 232, 237).
“ ‘The nature of the warning and to whom it should be given depend
upon a number of factors including the harm that may result from use
of the product without the warnings, the reliability and adverse
interest of the person to whom notice is given, the kind of product
involved and the burden in disseminating the warning’ ” (Chien Hoang v
ICM Corp., 285 AD2d 971, 972; see generally Cover v Cohen, 61 NY2d
261, 276). Consequently, “ ‘[i]n all but the most unusual
circumstances, the adequacy of a warning is a question of fact’ to be
determined at trial” (Johnson v UniFirst Corp., 90 AD3d 1539, 1540;
see Repka v Arctic Cat, Inc., 20 AD3d 916, 918). Here, defendant
failed to meet its burden of establishing as a matter of law that the
warnings were adequate or that the failure to give warnings was not a
proximate cause of the accident (cf. Pizzaro v City of New York, 188
AD2d 591, 593, lv denied 82 NY2d 656). In any event, even assuming,
arguendo, that defendant met its initial burden on the motion by
submitting the affidavit of its expert, we note that the expert’s
affidavit submitted by plaintiff in opposition to the motion
“presented a credibility battle between the parties’ experts, and
issues of credibility” may not be decided on a motion for summary
judgment (Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624; see Baity
                                 -3-                     103
                                                   CA 13-01249

v General Elec. Co., 86 AD3d 948, 952).




Entered:   March 21, 2014                 Frances E. Cafarell
                                          Clerk of the Court
