(dissenting). We would affirm the order of dismissal, not for the reason stated at Special Term, but because there can be no liability on the manufacturer and distributor for a hazard which was as apparent to the plaintiff operator as it was to them (Burnstein v. Haas, 272 App. Div. 1051). We cannot agree with the majority’s conclusion that, although the location of the luggage rack was obvious, the danger to the rider was not apparent. In Campo v. Scofield (276 App. Div. 413, 417, affd. 301 N. Y. 468) the court stated: “If such failure [there, to supply guards; here, the positioning of the rack] constituted a defect which created a danger to one using the machine, then both the defect and the danger must have been obvious and patent and known to the plaintiff. The complaint did not allege otherwise.” As the majority recognize, “ It does not take a great deal of engineering expertise to determine that the rider of a moving motorcycle will be projected forward when he collides with an object coming in the opposite direction.”
The rationale of1 the cases which permit recovery for aggravation of damages caused by defective design, as set forth in Larsen v. General Motors Corp. (391 F. 2d 495), is persuasive and we would have no difficulty in permitting a recovery for second collision damages when a latent defect in design creates foreseeable risk of harm. However, in the instant case the complaint as amplified and restricted by the bill of particulars makes no mention of a latent or hidden defect or con*62chale d danger, and the location of the luggage rack cannot constitute such a latent defect or concealed danger. Plaintiff, who had prior experience with the mechanism of cycles, purchased this motorcycle from a private individual about one year before the accident. The luggage rack was optional equipment, not an item essential to the functioning of the machine, readily removable by him, and could be placed either in the front or in the rear of the motorcycle. Since in our view, the alleged defect was open, patent, and known to plaintiff, and no reasonable hidden risk was imposed upon him, we would not construe the complaint so broadly nor grant leave to amend (see Sarnoff v. Charles Schad, Inc., 22 N Y 2d 180, 186; Inman v. Binghamton Housing Auth., 3 N Y 2d 137, 145).
The order should he affirmed on the law.
Moule and Henry, JJ., concur with Goldman, P. J..; Del Vecchio, J., dissents and votes to affirm the order in an opinion in which Wither, J., concurs.
Order reversed with costs and motion denied.