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April 27, 2021

Defendants seeking summary judgment have the initial burden of demonstrating that the motion should be granted

A New York City police detective [Plaintiff] serving in the Police Department's Emergency Services Unit severely injured his eye while attempting to change the carbon dioxide cartridge of an animal tranquilizer gun. Plaintiff sought to recover damages for personal injuries against, among others, the City of New York and its Police Department, [City Defendants] under color of General Municipal Law §205-e,* and against NASCO, the distributor of the gun, alleging negligence and strict products liability predicated upon defective design and failure to provide adequate warnings.

The NASCO and the City Defendants appealed Supreme Court rejecting, in whole or in part, their various motions seeking summary judgment dismissing Plaintiff's claims. 

Addressing NASCO's and the City Defendants' respective appeals of Supreme Court's denial of their respective motions for summary judgment, the Appellate Division, after sustaining various elements of the Supreme Court's decision, noted the several failures of the defendants to meet their respective "initial burdens" that might otherwise have resulted in Supreme Court's granting all, or some, of their respective motions seeking summary judgment.

The Appellate Division decision provides a number of examples of the defendants failing to meet their respective "initial burdens" in its decision such as noting "NASCO's expert ... opined in mere conclusory fashion that the tranquilizer gun was 'appropriately designed' and 'did not ... contain any explanation of the gun's design, or any discussion of industry standards or costs.'" This, said the court, "was insufficient to affirmatively demonstrate, prima facie, that the gun was reasonably safe for its intended use."

The Appellate Division's decision is instructive as it identifies various elements that, if presented by NASCO and the City Defendants in their pleadings before the Supreme Court, might have had a different result, in whole or in part, with respect to their respective motions for summary judgment. 

* Subdivision 3 of §205-e provides "This section shall be deemed to provide a right of action regardless of whether the injury or death is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department."

Click HERE to access full text of the Appellate Division's decision in this appeal.


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