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Decided on March 12, 2008
Supreme Court, Bronx County

25879/2003

For Defendant Alcon Laboratories, Inc.:
Jill D. Brenner, Esq.
Heidell, Pittoni, Murphy & Bach, L.L.P.
99 Park Avenue
New York, New York 10016

For Defendants Kevin Ross Mathisson, M.D. and Montefiore Medical Center:
Edward M. Tobin, Esq.
Clausen Miller, P.C.
One Chase Manhattan Plaza
New York, New York 10005
For Plaintiff:
Alfred L. Odom, Esq.
The Jacob D. Fuchsberg Law Firm, LLP
500 Fifth Avenue
New York, New York 10110
Lucindo Suarez, J.
Upon the notice of motion dated May 21, 2007, the affirmation and exhibits in support thereof and Alcon Laboratories, Inc.'s memorandum of law; the July 21, 2007 affirmation in opposition of defendants Montefiore Medical Center and Kevin Ross Mathisson, M.D. and the exhibit annexed thereto; plaintiffs' September 18, 2007 affirmation in opposition; the September 25, 2007 reply affirmation; the order of this court dated November 21, 2007 directing defendants Montefiore Medical Center and Kevin Ross Mathisson, M.D. to reveal the name of their expert witness to the other parties and stating that upon the failure to comply, this court would consider the motion without considering the affidavit of their non-medical expert; the order of this court dated January 22, 2008 denying the motion of defendants Montefiore Medical Center and Kevin Ross Mathisson,
M.D. for a protective order, directing them to advise their adversaries of the name of their expert witness and stating that upon the failure to comply, this court would consider the motion without considering the affidavit of their non-medical expert; the failure of defendants Montefiore Medical Center and Kevin Ross Mathisson, M.D. to furnish this court with proof of such compliance; and due deliberation; the court finds:
This action is based upon an injury which plaintiff Juanita Carmona ("plaintiff") suffered on October 24, 2001 during eye surgery performed by defendant Kevin Ross Mathisson, M.D. George Carmona sues derivatively. It is alleged that during the surgery, Dr. Mathisson utilized an instrument known as a Series 20000 Legacy phacoemulsification device ("STTL") manufactured by defendant Alcon Laboratories, Inc. ("Alcon"), s/h/a Alcon Laboratories Inc., USA and Alcon Inc., which caused a burn wound to plaintiff's cornea. Plaintiffs allege strict liability, negligence, failure to warn, design defect and manufacturing defect. Alcon moves for summary judgment dismissing the complaint as against it upon the grounds: that the breach of warranty claim is time-barred; that the failure to warn claim is barred by the "learned intermediary" doctrine; that there is no evidence that the instrument caused plaintiff's injury; and that there is no evidence of a design or manufacturing defect.
The cause of action for breach of warranty accrued when the item was sold to Montefiore [*2]Medical Center in 1996, so that Alcon asserts that this action, commenced in October 2003 is time-barred pursuant to the four-year statute of limitations of Uniform Commercial Code

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