DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, it is hereby: ORDERED that Defendants’ motion for summary judgment pursuant to CPLR §3212 as to Plaintiff’s claims regarding any failure to warn by the Defendants is hereby granted; and it is further ORDERED that the remaining portions of Defendants’ motion are hereby denied. In order to prevail on a motion for summary judgment, the moving party bears the initial burden of establishing, via evidence in admissible form, their entitlement to judgment as a matter of law. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Should the movant fail to meet this burden, summary judgment cannot be granted regardless of the sufficiency of the opposing papers. See Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). If the movant makes the requisite prima facie showing, the burden shifts to the opposing party to provide evidence in admissible form establishing factual issues which would preclude summary judgment. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). A manufacturer who places a defective product into the stream of commerce may be liable for injuries or damages caused by such product. See Gebo v. Black Clawson Co., 92 N.Y.2d 387, 392 (1998). A person injured by a defective product may maintain causes of action under the theories of strict products liability, negligence, or breach of warranty, depending on the factual circumstances presented in the case. See Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 (1983); Mangano v. Town of Babylon, 111 A.D.3d 801 (2d Dep’t 2013). “‘A product may be defective when it contains a manufacturing flaw, is defectively designed, or is not accompanied by adequate warnings for the use of the product.’” Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 41 (2003), quoting Liriano v. Hobart Corp., 92 N.Y.2.d 232, 237 (1998). “‘[A] defectively manufactured product is flawed because it is misconstructed without regard to whether the intended design of the manufacturer was safe or not. Such defects result from some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction.” Pierre-Louis v. DeLonghi Am., Inc., 66 A.D.3d 859, 861 (2d Dep’t 2009), quoting Caprara v. Chrysler Corp., 52 N.Y.2d 114, 128-129 (1981). “To recover on a strict products liability cause of action based on inadequate warnings, a plaintiff must prove causation, i.e., that if adequate warnings had been provided, the product would not have been misused.” Reece v. J.D. Posillico, Inc., 164 A.D.3d 1285, 1288 (2d Dep’t 2018). “‘[A] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product[s] of which it knew or should have known.’” Singh v. Gemini Auto Lifts, Inc., 137 A.D.3d 1002, 1002-1003 (2d Dep’t 2016), quoting Liriano 92 N.Y.2d at 237. “A manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable.” Reece v. J.D. Posillico, Inc., 164 A.D.3d at 1287-1288. “‘[T]he failure to warn must have been a substantial cause of the events which produced the injury.’” Reece v. J.D. Posillico, Inc., 164 A.D.3d at 1288, quoting Billsborrow v. Dow Chem., 177 A.D.2d 7, 16 (2d Dep’t 1992). “‘Generally, it is for the trier of fact to determine the issue of proximate cause.’” Reece, 164 A.D.3d at 1288, quoting Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889 (2d Dep’t 2011). An unsworn expert report submitted in support of a motion for summary judgment does not constitute competent evidence. See CPLR §2106; Mazzola v. City of New York, 32 A.D.3d 906, 907 (2d Dep’t 2006); Ritts v. Teslenko, 276 A.D.2d 768, 769 (2d Dep’t 2000). Contrary to the rule followed in the Appellate Division, Fourth Department, in the First and Second Departments, a party may not correct this type of defect in their reply, as this would seek to remedy basic deficiencies in the moving party’s papers, rather than to respond to arguments made in opposition. See Damas v. Valdes, 84 A.D.3d 87, 95 (2d Dep’t 2011); compare O’Niell v. Buffalo Southwestern, LLC, 216 A.D.3d 1451, 1452 (4d Dep’t 2023). Here, the Court is granting summary judgment to the Defendants as to Plaintiff’s claims of failure to warn. The Plaintiff testified that he did not read the owner’s manual prior to riding the subject motorcycle. The Plaintiff cites specifically to Johnson v. Johnson Chem. Co. to support his argument that a Defendant can still be held liable on these claims despite a Plaintiff’s admitted tendency to ignore certain types of labeling. See 183 A.D.2d 64, 70 (2d Dep’t 1992). In Johnson, the Second Department analyzed the labeling of cans of insecticide, and highlighted factors to consider in failure to warn cases, and the Court denied defendants motion for summary judgment based on the conspicuousness, prominence and/or placement of the warnings. Id. Specifically, the Court reasoned that “the intensity of the language used in the text of a warning is only one of the factors to be considered in deciding whether such warning is adequate. A second factor to be considered is the prominence with which such language is displayed.” Id. Contrary to Plaintiff’s contention, the facts presented are not analogous to warning labels presented on consumer products as in Johnson, where the product itself displays information about intended uses and warnings Id. Here, the Plaintiff admitted to not reading the owner’s manual. This Court finds, as the First Department did in Reis v. Volvo Cars of North America, Inc., that the Plaintiff’s admission severs the causal connection between the alleged failure to warn and the accident. See 73 A.D.3d 420, 423 (Id Dep’t 2010). For these reasons, the Court is granting Defendants’ motion for summary judgment as it relates to those claims. The Court is denying the remainder of Defendants’ motion for summary judgment. The Defendant has the initial burden of proving, through admissible evidence, their entitlement to summary judgement. See Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). In support of their motion, the Defendants submitted various expert reports, however none of the reports were sworn to and no affidavits in support of these reports were filed until the Defendants’ reply. Contrary to the holdings of the Fourth Department as cited by the Defendants, the Second Department has held that these defects in Defendants’ moving papers cannot be remedied on reply, as they are not in response to any argument raised in opposition. See Damas v. Valdes, 84 A.D.3d 87, 95 (2d Dep’t 2011); compare O’Niell v. Buffalo Southwestern, LLC, 216 A.D.3d 1451, 1452 (4d Dep’t 2023). Therefore, the Defendants have not satisfied their burden, and the Court need not review the sufficiency of Plaintiff’s papers in opposition. See Winegrad. 64 N.Y.2d 851. This constitutes the decision and order of the Court. Dated: September 27, 2023
