Herbert Rubin, Michael Hoenig, David B. Hamm, New York City, and Jack E. Toliver for appellant.7
Cheryl Eisberg Moin, Emilio Nunez, Harry H. Lipsig, Jay W. Dankner and Pamela Anagnos Liapakis, New York City, for respondents.8
The order of the Appellate Division, 107 A.D.2d 667, 484 N.Y.S.2d 585, should be affirmed, with costs.11
The record presents triable issues of fact concerning whether the forklift, as marketed with an attached but removable overhead safety guard, was "not reasonably safe" (Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204) for the uses intended or reasonably anticipated by the manufacturer (see, Micallef v. Miehle Co., 39 N.Y.2d 376, 385-386, 384 N.Y.S.2d 115, 348 N.E.2d 571).12
As correctly noted by the Appellate Division in denying defendant's motion for summary judgment (CPLR 3212), this court's holding in Robinson v. Reed-Prentice Div., 49 N.Y.2d 471, 426 N.Y.S.2d 717, 403 N.E.2d 440 does not compel a different result. In contrast with the detaching of the removable safety guard in this case, Robinson involved "[m]aterial alterations [i.e., cutting a 6-inch by 14-inch access hole in the safety gate of a plastic molding machine] which work[ed] a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature" (49 N.Y.2d, at p. 481, 426 N.Y.S.2d 717, 403 N.E.2d 440). There is evidence in this record that the forklift was purposefully manufactured to permit its use without the safety guard.13
Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.