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  • Farm Family Casualty Insurance Co-Aso, Leonard Carpezzi, Nancy Carpezzi v. D N V Repair Center Inc, Douglas Dynamics Llc Torts - Other (Subro - property damage) document preview
  • Farm Family Casualty Insurance Co-Aso, Leonard Carpezzi, Nancy Carpezzi v. D N V Repair Center Inc, Douglas Dynamics Llc Torts - Other (Subro - property damage) document preview
  • Farm Family Casualty Insurance Co-Aso, Leonard Carpezzi, Nancy Carpezzi v. D N V Repair Center Inc, Douglas Dynamics Llc Torts - Other (Subro - property damage) document preview
  • Farm Family Casualty Insurance Co-Aso, Leonard Carpezzi, Nancy Carpezzi v. D N V Repair Center Inc, Douglas Dynamics Llc Torts - Other (Subro - property damage) document preview
  • Farm Family Casualty Insurance Co-Aso, Leonard Carpezzi, Nancy Carpezzi v. D N V Repair Center Inc, Douglas Dynamics Llc Torts - Other (Subro - property damage) document preview
  • Farm Family Casualty Insurance Co-Aso, Leonard Carpezzi, Nancy Carpezzi v. D N V Repair Center Inc, Douglas Dynamics Llc Torts - Other (Subro - property damage) document preview
  • Farm Family Casualty Insurance Co-Aso, Leonard Carpezzi, Nancy Carpezzi v. D N V Repair Center Inc, Douglas Dynamics Llc Torts - Other (Subro - property damage) document preview
  • Farm Family Casualty Insurance Co-Aso, Leonard Carpezzi, Nancy Carpezzi v. D N V Repair Center Inc, Douglas Dynamics Llc Torts - Other (Subro - property damage) document preview
						
                                

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FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ________________________________________________X FARM FAMILY CASUALTY INSURANCE Index No.: 030236/2018 COMPANY A/S/O LEONARD AND NANCY CARPEZZI, Plaintiff, -against- D N V REPAIR CENTER, INC. AND DOUGLAS DYNAMICS, LLC., Defendants. ________________________________________________X MEMORANDUM OF LAW IN SUPPORT OF DOUGLAS DYNAMICS, LLC.’S MOTION FOR SUMMARY JUDGMENT HANNUM FERETIC PRENDERGAST & MERLINO, LLC Attorneys for Defendant DOUGLAS DYNAMICS, LLC Office and Post Office Address 55 Broadway, Suite 202 New York, New York 10006 (212) 530-3900 1 1 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 TABLE OF CONTENTS Pages: PRELIMINARY STATEMENT .................................................................................................... 5 ARGUMENT POINT I ...................................................................................................................................... 6 STANDARD OF REVIEW ON A MOTION FOR SUMMARY JUDGMENT POINT II..................................................................................................................................... 6 PLAINTIFF’S BURDEN OF PROOF TO ESTABLISH VIABLE CLAIM FOR PRODUCTS LIABILITY POINT III ........................................................................................................................................ 8 THERE IS NO EVIDENCE ON THE RECORD TO ESTABLISH THAT DOUGLAS DYNAMICS MANUFACTURED THE SNOWPLOW ALLEGED TO HAVE CAUSED THE FIRE. THEREFORE, PLAINTIFF CANNOT ESTABLISH ITS CASE AGAINST DOUGLAS DYNAMICS AS A MATTER OF LAW. POINT IV.......................................................................................................................................... 9 IRRESPECTIVE OF WHETHER PLAINTIFF CAN ESTABLISH THAT THE PLOW ALLEGED TO HAVE BEEN THE CAUSE AND ORIGIN OF THE FIRE WAS ONE MANUFACTURED BY DOUGLAS DYNAMICS, DOUGLAS DYNAMICS HAS AFFIRMATIVELY RULED OUT ANY DESIGN OR MANUFACTURING DEFECT IN WESTERN PLOWS THAT COULD HAVE CAUSED THE FIRE. CONCLUSION ................................................................................................................................ 15 2 2 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 TABLE OF AUTHORITIES Pages: Cases Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986) 6 .................................................................................... Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 (1974) 6 .................................................................................... Cassatt v. Zimmer, Inc., 161 A.D.3d 1549, 75 N.Y.S.3d 764 (4th Dep't 2018) ................................................................ 11 Escarria v. American Gage & Mfg. Co., 261 A.D.2d 434, 690 N.Y.S.2d 86 (2d Dep't 1999) ..................................................................... 7 Fender v. Prescott, 101 A.D.2d 418, 476 N.Y.S.2d 128 (1st Dept. 1984) .................................................................. 6 Fox v. Corning Glass Works, Inc., 81 A.D.2d 826, 438 N.Y.S.2d 602 (2nd Dep’t. 1981) ................................................................. 10 Freedman v. Chem. Constr. Corp., 43 N.Y.2d 260, 401 N.Y.S.2d 176 (1977) ..................................... ............................................... 6 Fried v. Bower and Gardner, 46 N.Y.2d 765, 413 N.Y.S.2d 650 (1978) 6 .................................................................................... Healey v. Firestone Tire & Rubber Co., 7 87 N.Y.2d 596, 640 N.Y.S.2d 860, 663 N.E.2d 901 (1996) ........................................................ 7 Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (1989) ...................................................... 7 In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 2010 WL 3720406 (S.D. N.Y. 2010) (applying New York law) ................................................. 6 In re New York City Asbestos Litigation, 256 A.D.2d 250, 683 N.Y.S.2d 39 (1st Dep't 1998) .................................................................... 7 King v. Gregruss Management Corp., 57 A.D.3d 851, 870 N.Y.S.2d 103 (2d Dep't 2008) ..................................................................... 7 Nawrocki v. Coastal Corp., 45 A.D.3d 1341, 845 N.Y.S.2d 896 (4th Dep't 2007) ................................................................ 11 Ramos v. Howard Industries, Inc., 10 N.Y.3d 218, 855 N.Y.S.2d 412, 885 N.E.2d 176, Prod. Liab. Rep. (CCH) P 17958 (2008) ..10 Sprung v. MTR Ravensburg Inc., 99 N.Y.2d 468, 758 N.Y.S.2d 271, 788 N.E.2d 620 (2003) ........................................................ 10 Sullivan v. Hutchinson, 12 A.D.3d 740, 783 N.Y.S.2d 715 (3d Dep't 2004) ..................................................................... 7 Vermette v. Kenworth Truck Co. Div. of Paccar, Inc., 68 N.Y.2d 714, 506 N.Y.S.2d 313 (3rd Dept. 1986) ................................................................... 6 Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985) 6 .................................................................................... Wojcik v. Empire Forklift, Inc., 3 3 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 14 A.D.3d 63, 783 N.Y.S.2d 698, 55 U.C.C. Rep. Serv. 2d 190 (3d Dep't 2004) .................... 11 Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980) ................................................................................... 6 4 4 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 PRELIMINARY STATEMENT The plaintiff, FARM FAMILY CASUALTY INSURANCE COMPANY A/S/O LEONARD AND NANCY CARPEZZI (hereinafter as “Plaintiff”), alleges that the fire at the property of LEONARD AND NANCY CARPEZZI (hereinafter as the “Carpezzis”) was caused by either an unspecified defect in a snowplow manufactured by DOUGLAS DYNAMICS, LLC (hereinafter as “Douglas Dynamics”) or an unspecified deficient installation of the snowplow by co-defendant D N V REPAIR CENTER, INC. (hereinafter as “DNV”). To date, despite due demand, plaintiff has failed to provide any objective information and documents affirmatively establishing that the snowplow in question was manufactured by Douglas Dynamics. Due to the extensive damage sustained to the recovered evidence, Douglas Dynamics and its consultants have determined that there is no way to confirm who manufactured the snowplow without more evidence from plaintiff. Plaintiff has acknowledged that it possesses no further information or documents that can be used to identify the plow. Because plaintiff is unable to identify the manufacturer of the plow using anything more than mere speculation and conjecture, plaintiff’s claims against Douglas Dynamics fail as a matter of law. Even if Douglas Dynamics assumes for the sake of argument, that the Carpezzis’ snowplow was manufactured by Douglas Dynamics, plaintiff’s alleged theory of liability against Douglas Dynamics have been affirmatively ruled out as impossible after extensive inspections and testing by Douglas Dynamics’ consultants. Quite simply, if Leonard Carpezzi turned off his vehicle prior to the fire, the design of a Douglas Dynamics manufactured Western snowplow would mean that the snowplow’s electrical components were not energized and were inert and therefore would post absolutely no risk for a fire. Therefore, plaintiff’s Complaint, claims and all cross-claims against Douglas Dynamics must be dismissed as a matter of law. 5 5 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 ARGUMENT I. STANDARD OF REVIEW ON A MOTION FOR SUMMARY JUDGMENT New York Civil Practice Law and Rule §3212 provides that summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action is established sufficiently to warrant the Court as a matter of law in directing judgment. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 597 (1980); Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 317 (1985). Once a party establishes its entitlement to summary judgment, the burden shifts to the non-movant to demonstrate by admissible evidence the existence of a triable issue of material fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 (1986); Vermette v. Kenworth Truck Co. Div. of Paccar, Inc., 68 N.Y.2d 714, 717, 506 N.Y.S.2d 313, 314 (3rd Dept. 1986). If the opponent of the motion cannot meet this burden, the motion for summary judgment must be granted. Id. Conclusory assertions will not defeat summary judgment. Freedman v. Chem. Constr. Corp., 43 N.Y.2d 260, 264, 401 N.Y.S.2d 176, 179 (1977); Fried v. Bower and Gardner, 46 N.Y.2d 765, 413 N.Y.S.2d 650 (1978). (Conclusory allegations and opinions do not substitute for a showing of evidentiary facts and are not enough to defeat a motion for summary judgment); Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 481 (1974). (Bald, conclusory assertions even if believable are not enough to defeat summary judgment); Fender v. Prescott, 101 A.D.2d 418, 425, 476 N.Y.S.2d 128, 133 (1st Dept. 1984). (The issue must be shown to be real, not feigned.) II. PLAINTIFF’S BURDEN OF PROOF TO ESTABLISH VIABLE CLAIM FOR PRODUCTS LIABILITY In a products liability action, New York courts generally require that the plaintiff identify the exact defendant whose product injured the plaintiff. In re Methyl Tertiary Butyl Ether 6 6 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 (MTBE) Products Liability Litigation, 2010 WL 3720406 (S.D. N.Y. 2010) (applying New York law); Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (1989). If plaintiff is using circumstantial evidence to establish the identity of the manufacturer of the product, the circumstantial evidence must establish that it is reasonably probable, not merely possible or evenly balanced, that the defendant was the source of the offending product. Sullivan v. Hutchinson, 12 A.D.3d 740, 783 N.Y.S.2d 715 (3d Dep't 2004); Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 640 N.Y.S.2d 860, 663 N.E.2d 901 (1996); Escarria v. American Gage & Mfg. Co., 261 A.D.2d 434, 690 N.Y.S.2d 86 (2d Dep't 1999); In re New York City Asbestos Litigation, 256 A.D.2d 250, 683 N.Y.S.2d 39 (1st Dep't 1998). Speculative or conjectural evidence of a manufacturer's identity is not enough. Significantly, a plaintiff's conjecture and surmise do not create a fact issue on a motion for summary judgment as to the identity of a manufacturer. King v. Gregruss Management Corp., 57 A.D.3d 851, 870 N.Y.S.2d 103 (2d Dep't 2008), leave to appeal denied, 13 N.Y.3d 707, 890 N.Y.S.2d 444, 918 N.E.2d 959 (2009). Specifically, the Appellate Division, Second Department held that where a plaintiff was not capable of rebutting the defendants' denial of manufacture of the product alleged to have caused the harm, nothing remained of the plaintiff's opposition other than conjecture or surmise, which was insufficient to defeat the motions for summary judgement). Id. The Court further noted that without expert testimony, the plaintiff will be unable to sustain his burden of proving his case under any of the enumerated causes of action and under such circumstances, summary judgment dismissing the complaint insofar as asserted against the defendants is appropriate Id. 7 7 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 III. THERE IS NO EVIDENCE ON THE RECORD TO ESTABLISH THAT DOUGLAS DYNAMICS MANUFACTURED THE SNOWPLOW ALLEGED TO HAVE CAUSED THE FIRE. THEREFORE, PLAINTIFF CANNOT ESTABLISH ITS CASE AGAINST DOUGLAS DYNAMICS AS A MATTER OF LAW. To date, plaintiff has failed to produce any objective documents or evidence whatsoever positively identifying that the alleged plow as one that was manufactured by Douglas Dynamics. On January 22, 2019, plaintiff’s counsel Fredric Paul Gallin prepared a letter to the Court to address defendants’ demands that plaintiff produce documents and/or information to identify the plow alleged to have been the cause and origin of the fire. Mr. Gallin acknowledged that the Court has directed that plaintiff produce such information and represented to the Court that, “We cannot produce that which we do not have” and that “Mr. Carpezzi does not have any paperwork concerning the plow because it burnt up in the fire which is the subject of this lawsuit.” See Exhibit “E” at pgs. 1-2. Mr. Gallin further represents to the Court that “Unfortunately, we therefore cannot comply with any directives as to producing more paperwork concerning this plow as this Court directed on January 15, 2019 because we simply do not have it.” See Exhibit “E” at pg. 3. Plaintiff further cannot contend that further discovery is needed because plaintiff filed and served a Note of Issue on November 9, 2020 certifying to the Court that all necessary discovery was completed. Douglas Dynamics expressly denies that it manufactured the Carpezzis’ snowplow that was found at the scene of the fire. In fact, after multiple inspections and testing, Douglas Dynamics’ own engineer and compliance manager Jerry Depies and Douglas Dynamics’ fire investigator and forensic engineer Nick Leone both affirmed that there is no definitive way to confirm based on the evidence recovered that the plow was manufactured by Douglas Dynamics. Mr. Depies was not able to definitively confirm that the plaintiff’s plow at the scene of the 8 8 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 accident was a Western plow manufactured by Douglas Dynamics. See Depies Affidavit at ¶ 8. Mr. Depies opined that while the plow at the scene of the accident did have similarities to a Western plow manufactured by Douglas Dynamics, the plow is also very similar to snowplows manufactured by other companies. There is very little difference between the blades of the plows manufactured by one company to another. See Depies Affidavit at ¶ 9. Based on Mr. Depies’ inspection of the plow at the scene of the incident and the damage that the plow sustained, he concluded that there is no foolproof way to identify and confirm that the plow in question is a Western plow manufactured by Douglas Dynamics. See Depies Affidavit at ¶10. This conclusion was fully corroborated by Nick Leone, who concluded that cause of the fire could not be determined to have originated from the alleged snowplow because of the severity of physical damage to the scene and the inability to inspect all evidence that was retained from the scene. See Exhibit “I” at pg. 81. To date, despite due demand, the only “evidence” produced by plaintiff to identify that the snowplow was manufactured by Douglas Dynamics was Leonard Carpezzi’s own self- serving account. Pursuant to the above-referenced case law, plaintiff’s own account is “speculative and conjectural evidence” and is insufficient to establish plaintiff’s case against Douglas Dynamics as a matter of law. Therefore, plaintiff’s Complaint, claims and all cross- claims arising thereof brought against Douglas Dynamics must be dismissed in their entirety. IV. IRRESPECTIVE OF WHETHER PLAINTIFF CAN ESTABLISH THAT THE PLOW ALLEGED TO HAVE BEEN THE CAUSE AND ORIGIN OF THE FIRE WAS ONE MANUFACTURED BY DOUGLAS DYNAMICS, DOUGLAS DYNAMICS HAS AFFIRMATIVELY RULED OUT ANY DESIGN OR MANUFACTURING DEFECT IN WESTERN PLOWS THAT COULD HAVE CAUSED THE FIRE. Even if Douglas Dynamics assumes for the sake of argument that it manufactured the Carpezzis’ snowplow, plaintiff’s alleged theory of liability against Douglas Dynamics have been 9 9 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 affirmatively ruled out as impossible after extensive inspections and testing by Douglas Dynamics’ consultants. The NY court of Appeals has held that summary judgment dismissing the claims against a lathe manufacturer was properly granted where there was no evidence in the record that the product itself failed to perform as intended. Sprung v. MTR Ravensburg Inc., 99 N.Y.2d 468, 758 N.Y.S.2d 271, 788 N.E.2d 620 (2003). Further, the Appellate Division, Second Department held that once the defendant has countered the inference that the alleged damage arose out of the normal use of a product and that the product had not been damaged or misused since it left the manufacturer's control, the plaintiff must come forward with some direct proof of the cause of the accident. Otherwise, any verdict which may be rendered in favor of the plaintiff will be based on pure conjecture as to the cause of the accident and, as such, cannot be allowed to stand. Fox v. Corning Glass Works, Inc., 81 A.D.2d 826, 826, 438 N.Y.S.2d 602, 603 (2nd Dep’t. 1981); See also Ramos v. Howard Industries, Inc., 10 N.Y.3d 218, 855 N.Y.S.2d 412, 885 N.E.2d 176, Prod. Liab. Rep. (CCH) P 17958 (2008) (holding that defendant's experts had opined that the explosion could have been caused by alternate causes and that plaintiff's expert was based on pure speculation and failed to exclude the opinion of defendant's expert as to alternative causes). Numerous NY Courts have dismissed products liability cases on a motion for summary judgment by a manufacturer of a product where the manufacturer has established using inspections, testing, expert affidavits, and expert reports that the product was not defective and/or that the plaintiff’s injury could not have been caused by the product. The Appellate Division has held that a manufacturer of a knee replacement system established its prima facie entitlement to summary judgment by presenting deposition testimony of its director of quality assurance and an expert affidavit of a product development engineer that concluded that the components of the 10 10 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 knee replacement system were designed and manufactured under state of the art conditions according to the manufacturer's specifications and that the manufacturing process complied with applicable industry standards and that, in light of such testing and inspection, the components placed in the patient conformed with the specified dimensional, surface, material, and visual requirements. Cassatt v. Zimmer, Inc., 161 A.D.3d 1549, 75 N.Y.S.3d 764 (4th Dep't 2018). Similarly, the Appellate Division held that a distributor and retail seller of a safety device met their initial burden, on their summary-judgment motion in a strict liability action, of presenting evidence that a warehouse employee's injuries from falling from a forklift platform were not caused by any defect in the safety device; their expert's affidavit described the tests he performed on the device and his finding that the device performed properly if used correctly. Wojcik v. Empire Forklift, Inc., 14 A.D.3d 63, 783 N.Y.S.2d 698, 55 U.C.C. Rep. Serv. 2d 190 (3d Dep't 2004); See also Nawrocki v. Coastal Corp., 45 A.D.3d 1341, 845 N.Y.S.2d 896 (4th Dep't 2007) (holding that a defendant manufacturer established its prima facie entitlement to judgment as a matter of law through expert affidavits indicating that there was no scientific literature establishing that dermal exposure or exposure to benzene through inhalation of gasoline vapors and engine exhaust could cause aplastic anemia as alleged by plaintiff.) Leonard Carpezzi testified that prior to the fire, he shut off his pick-up truck’s engine after he pulled it into the garage and that he saw no lights on the plow turned on or anything running on the truck. See Exhibit “F” at pgs. 160-161. Mr. Carpezzi testified that the last function he carried out with the snowplow before parking his vehicle in the garage was the put the plow blade down. See Exhibit “F” at pg. 160. As explained in greater detail in both the Affidavit of Jerry Depies and the report of Nick Leone annexed hereto as Exhibit “I”, the inspections and testing performed on both the 11 11 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 recovered evidence from the site of the fire and testing on an exemplar sample of a Western snowplow manufactured by Douglas Dynamics affirmatively demonstrates that if Leonard Carpezzi turned off his vehicle prior to the fire, the design of a Douglas Dynamics manufactured Western snowplow would mean that the snowplow’s electrical components were not energized and were inert and therefore would post absolutely no risk for a fire. Mr. Depies confirmed that the snowplow’s design meant that it should not be able to operate when the truck’s ignition is turned off if the plow is installed correctly. It also means that the rest of the snowplow’s components flowing downstream from the solenoid will not be energized whatsoever when the vehicle’s ignition is turned off. See Depies Affidavit at ¶ 16. This fact was corroborated by the lack of evidence of electrical activity or arcing in any portion of the electrical cable that runs from the truck’s battery to the plow. See Depies Affidavit at ¶ 17. Mr. Depies also observed the contacts on the solenoid were not welded to each other. Had the contacts on the snowplow’s solenoid were welded together, this would be further evidence that there was electrical activity running through the solenoid at the time of the fire. But there was absolutely no such evidence. See Depies Affidavit at ¶ 18. Mr. Depies established that the only way any component of a Western snowplow could possibly be involved in a fire would be if the plow relay somehow seized up and failed to turn off when the truck’s ignition was turned off. However, if the plow were to remain running even with the truck’s ignition turned off, the plow would have emitted a clearly audible noise. This would have alerted the plaintiffs or any reasonable person in its vicinity that the truck and/or the plow remained operational or otherwise energized. See Depies Affidavit at ¶ 21. Mr. Depies’ investigation of the facts of this case, there was no evidence to suggest that the snowplow and its components remained operational or was otherwise energized after the truck’s ignition was shut 12 12 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 off. See Depies Affidavit at ¶ 22.The evidence further demonstrated that the plow’s solenoid and other electrical components were not in use prior to Mr. Carpezzi parking his vehicle in the garage and prior to the subsequent fire. See Depies Affidavit at ¶ 26. Mr. Leone not only confirmed the above findings by Mr. Depies, but conducted further tests and analysis of both the recovered evidence of an exemplar Western snowplow. First, Mr. Leon similarly found (1) that the battery cables between the main power conductors and the snowplow motor showed no evidence of any physical electrical activity or arcing, (2) the location where they cross also did not show any indication of any electrical activity or arcing at the bumper, (3) no evidence of failure, welding, or malfunction of the contacts of the solenoid welding that would evidence the electrical components being energized at the time of the loss, and (4) no evidence of failure or malfunction of the 22-inch 6 gauge positive cable which traveled from the battery to the plow’s motor relay and no electrical arcing on the conductor whatsoever, which would eliminate a failure of the energized conductor as a potential cause of the fire. See Exhibit “I” at pgs. 57, 62-63, 67, 72. Additionally, Mr. Leone found that even if the plow control were somehow stuck ON, the plow’s electronic system contains built-in safety functions that would shut the controller off. This included a time out function if to shut off the system if the raise button is pressed for greater than 4.8 seconds or if the angle left or angle right button is pressed for longer than 9.6 seconds. The lower function does not utilize any electrical controls and therefore does not have any kind of timeout as it is not needed. Lastly, if the snowplow remote control is not used for 20 minutes straight, the unit will automatically shut itself off. Because of the built-in safety functions, it is not possible for the unit to have a broken button or some other reason why the raise or the side-to-side functions would be left in the ON position from a control standpoint. See Exhibit “I” at pgs. 72-73. 13 13 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 Even though Mr. Leone concluded that there was no physical evidence that would support the hypothesis that the snowplow system was at fault and the cause of the fire at the Carpezzis’ garage, Mr. Leone nevertheless tested the plaintiff’s theory for the alleged failure mode through tests on an exemplar system. The tests on the exemplar illustrates that even if the solenoid of a Western snowplow’s electrical system remained in the closed position, the batteries would be depleted from the continuous operation of the motor prior to any appreciable damage to the conductors. See Exhibit “I” at pg. 80. These results allowed Mr. Leone to eliminate a failure of the conductor wiring from a failed relay and overheating motor/wiring as a potential ignition source for the fire at the Carpezzis’ property. See Exhibit “I” at pg. 80. These findings and conclusions by Douglas Dynamics and Mr. Leone are fully corroborated by Leonard Carpezzi’s own account during his ownership of the snowplow. Mr. Carpezzi confirmed that the electricity to the plow would be automatically killed off because he cannot turn the plow’s blade or lift the plow’s blade up and down when the vehicle’s ignition key is turned off. See Exhibit “F” at pg. 152. As such, Mr. Carpezzi has never experienced any occasions where the plow was still functioning once the truck was shut off. See Exhibit “F” at pg. 152. Ultimately, Douglas Dynamics has established that there were no failures found on any of the snowplow system components that were inspected. Both physical remaining evidence and exemplar testing ruled out any potential failure mode and sequence of events available to cause the fire in question. Based on the foregoing authority, Douglas Dynamics has established using inspections, testing, an affidavit from an individual with personal knowledge, and an expert report that the product was not defective and/or that the plaintiff’s injury could not have been caused by the product. Therefore, the Court should dismiss plaintiff’s Complaint, claims and all 14 14 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 cross-claims against Douglas Dynamics. CONCLUSION First, the plaintiff has failed to meet its burden to establish that Douglas Dynamics is the manufacturer of the plow using anything more than mere speculation and conjecture. Douglas Dynamics has expressly denied that it manufactured the snowplow. Based on the controlling authority, plaintiff’s claims against Douglas Dynamics fail as a matter of law. Second, even if Douglas Dynamics assumes for the sake of argument, that the Carpezzis’ snowplow was manufactured by Douglas Dynamics, plaintiff’s alleged theory of liability against Douglas Dynamics have been affirmatively ruled out as impossible after extensive inspections and testing by Douglas Dynamics’ consultants. Therefore, plaintiff’s Complaint, claims and all cross-claims against Douglas Dynamics must be dismissed as a matter of law. DATED: New York, New York March 10, 2021 Yours, etc., HANNUM FERETIC PRENDERGAST & MERLINO, LLC Napatr Thanesnant Napatr (Pat) Thanesnant Attorneys for Defendant DOUGLAS DYNAMICS LLC Office and Post Office Address 55 Broadway, Suite 202 New York, New York 10006 (212) 530-3900 To: Methfessel & Werbel, Esqs. Attorneys for Plaintiff FARM FAMILY CASUALTY INSURANCE CO. A/S/O LEONARD AND NANCY CARPEZZI 112 West 34th Street, 17th Floor New York, NY 10120 (212)947-1999 15 15 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 Milber Makris Plousadis & Seiden, LLP Attorneys for Defendant D N V REPAIR CENTER, INC. 709 Westchester Avenue, Suite 300 White Plains, NY 10604 (914)681-8700 Word Count: 3683 16 16 of 115 FILED: ROCKLAND COUNTY CLERK 03/12/2021 04:10 PM INDEX NO. 030236/2018 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/12/2021 APPENDED DOCUMENTS Zuckerman v City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (N.Y., Apr. 01, 1980) Winegrad v New York University Medical Center, No. 200, 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 (N.Y., Feb. 12, 1985) Alvarez v Prospect Hosp., No. 357, 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923