                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 23, 2014                    517360
________________________________

NEW YORK MUNICIPAL INSURANCE
   RECIPROCAL, as Subrogee of
   COUNTY OF SCHOHARIE,
                    Appellant,
      v

INTERNATIONAL TRUCK & ENGINE                 MEMORANDUM AND ORDER
   CORPORATION,
                    Defendant,
      and

VIKING-CIVES USA, INC.,
                    Respondent.
________________________________


Calendar Date:    September 3, 2014

Before:    Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                              __________


      Congdon, Flaherty, O'Callaghan, Donlon, Travis &
Fishlinger, Uniondale (Avis Spencer Decaire of counsel), for
appellant.

      Thorn Gershon Tymann & Bonanni, LLP, Albany (Paul D.
Jureller of counsel), for respondent.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Devine, J.),
entered March 4, 2013 in Schoharie County, which granted a motion
by defendant Viking-Cives USA, Inc. for summary judgment
dismissing the complaint against it.
                              -2-                517360

      Following a fire in a garage owned and operated by the
County of Schoharie, plaintiff conducted an investigation
revealing that the fire had started in a truck that the County
had purchased from defendant International Truck & Engine
Corporation over five years earlier. At the time of the
purchase, the County had contracted with defendant Viking-Cives
USA, Inc. (hereinafter defendant) to upfit the truck with a snow
plow and dump body, which included the installation of a related
hydraulic system. Plaintiff's investigation into the cause of
the fire determined that the hydraulic hoses had been improperly
bundled together with the truck's battery cables and that, when
the battery cables became frayed due to normal wear and tear, an
electrical arc had occurred which, in turn, ignited the hydraulic
fluid and caused the fire. Plaintiff thereafter commenced this
subrogation action asserting, among other things, causes of
action based upon negligence and strict products liability
against defendant, among others. Following discovery, defendant
moved for summary judgment dismissing the complaint, and Supreme
Court granted the motion. Plaintiff now appeals and we affirm.

      "A manufacturer cannot be held liable in negligence or
strict products liability 'where, after the product leaves the
possession and control of the manufacturer, there is a subsequent
modification which substantially alters the product and is the
proximate cause of the plaintiff's injuries'" (Colonial Indem.
Ins. Co. v NYNEX, 260 AD2d 833, 835 [1999], quoting Robinson v
Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 475 [1980];
see Liriano v Hobart Corp., 92 NY2d 232, 235-236 [1998]). Here,
defendant presented the deposition testimony and affidavit of
James LaParr, defendant's shop supervisor who was in charge of
upfitting the subject truck. According to LaParr, International
Truck had installed the battery box and tied the battery cables
to brackets it had installed on the passenger side of the truck
to hold the cables in place. Although defendant had to move the
battery box and cables from the passenger side to the driver's
side of the truck during the upfitting to accommodate a request
from the County, LaParr testified that defendant also moved the
brackets installed by International Truck to the driver's side
and reattached the battery cables to the brackets. LaParr
further testified that defendant thereafter installed the
hydraulic system, separately routing the hydraulic hoses using
                              -3-                517360

hangers that it had attached to the truck.

      It is undisputed that, after the County took possession of
the truck, the battery box was moved again. LaParr described how
this subsequent movement of the battery box would have created
slack in the battery cables, and that his inspection of the truck
following the fire revealed that someone had taken up this slack
by rerouting the battery cables through defendant's hangers that
were holding the hydraulic hoses. Further, in a reply affidavit
with an accompanying photograph, LaParr stated that he had
observed an International Truck bracket on the driver's side of
the truck during his inspection after the fire, which supported
his testimony that defendant had moved the bracket to separately
hold the battery cables when it moved the battery box during the
upfit.1 We agree with Supreme Court that defendant made a prima
facie showing of entitlement to summary judgment by submitting
proof that the subsequent modification of the truck, made after
it had left defendant's control, resulted in the condition that
ultimately caused the fire.

      The burden therefore shifted to plaintiff to come forward
with evidence sufficient to establish a question of fact
requiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324
[1986]; HSBC Bank USA, N.A. v Sage, 112 AD3d 1126, 1127 [2013],
lvs dismissed 22 NY3d 1172 [2014], 23 NY3d 1015 [2014]). To that
end, plaintiff submitted the affidavit of Douglas Rowland, a
licensed professional engineer who concluded that defendant was
responsible for the fire because there was no evidence that it
had used separate brackets for the battery cables when it moved
the battery box to the driver's side of the truck. His


    1
        We disagree with plaintiff's contention that the evidence
in LaParr's reply affidavit should not have been considered by
Supreme Court. The evidence submitted in the affidavit properly
countered plaintiff's argument in opposition to summary judgment
that no physical evidence exists that defendant had harnessed the
battery cables and hydraulic hoses separately (see Rondeau v
Georgia Pac. Corp., 29 AD3d 1066, 1067-1068 [2006]; Ioele v Wal-
Mart Stores, 290 AD2d 614, 615 [2002]; Ticor Tit. Guar. Co. v
Bajraktari, 261 AD2d 156, 157 [1999]).
                              -4-                  517360

conclusion is belied, however, by the photographic evidence
submitted with LaParr's reply affidavit. Further, his opinion
that the last movement of the box would not have created the need
to reroute the battery cables is unsupported by any evidentiary
foundation and, therefore, fails to raise a triable issue of fact
(see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002];
Gray v South Colonie Cent. School Dist., 64 AD3d 1125, 1128
[2009]; Stocklas v Auto Solutions of Glenville, Inc., 9 AD3d 622,
624 [2004], lv dismissed and denied 4 NY3d 738 [2004]).
Accordingly, summary judgment was properly granted in defendant's
favor.

     Peters, P.J., Lahtinen, Garry and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
