Evans v. Biro Manufacturing Co. , 735 N.Y.S.2d 384 ( 2001 )

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered September 28, 2000, which, in a products liability action, insofar as appealed from as limited by the briefs, denied defendant manufacturer’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The affidavit submitted by defendant’s president in support of the motion, which relies primarily on plaintiffs deposition testimony to show that the product in question was poorly maintained by plaintiffs employer and virtually “falling apart” by the time of the accident, simply does not address the safety of the product as designed, and is otherwise insufficient to shift to plaintiff the burden of coming forward with evidence of design defects (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; compare, Bouter v Durand-Wayland, Inc., 221 AD2d 902). Plaintiff did, however, supply such evidence through the affidavit of an expert witness. Concur — Rosenberger, J. P., Ellerin, Wallach, Rubin and Marlow, JJ.