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Argued March 12, 2002

Plaintiff was injured severely in an explosion at work while using a forklift to load pallets of rejected, leaking aerosol cans. In this failure-to-warn action against the manufacturer of the forklift, plaintiff alleges that if the defendant had supplied an adequate warning to alert potential users that that model of forklift could not be used to transport flammable materials, he would have found out what he was loading and not used that forklift. The trial court concluded that plaintiff had failed to establish a genuine issue of material fact concerning proximate cause and granted summary judgment to defendant. The court held that because no one in the workplace thought that finished aerosol cans, even if they were “rejects,” were flammable, there was no triable issue on whether the failure to warn was the proximate cause of plaintiff’s injuries. When plaintiff submitted moving papers that included a second affidavit related to that issue, the trial court refused to consider the motion.

The Appellate Division affirmed the trial court, including the court’s refusal to consider the second affidavit. The panel determined that the affidavit contradicted plaintiff’s earlier deposition testimony and his prior affidavit, and therefore raised only a sham factual dispute. Thus, in our review of the Appellate Division’s determination, we have the opportunity to address the question whether to accept the “sham affidavit” doctrine that arose as a part of the federal law governing summary judgment practice under Rule 56(c) of the Federal Rules of Civil Procedure.

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