dissents and votes to affirm the order appealed from, with the following memorandum: I do not agree with my colleagues that the defendant manufacturer Otto Martin Maschinebau Gmbh & Co. (hereinafter Martin) established as a matter of law that it cannot be held liable for the plaintiffs injuries. Martin presented evidence that the power table saw involved in this accident, which was manufactured in Germany, was shipped with certain safety devices. However, it is clear from the record that those devices were not in place when the accident occurred. A manufacturer is not responsible for a defective product if material alterations were made to the product by a third party after its delivery which "destroy[ed] the functional utility of a key safety feature” (see, Robinson v Reed-Prentice Div., 49 NY2d 471, 481). On the other hand, a manufacturer may be held liable under a design-defect theory where the product is purposefully manufactured so as to permit its use without a safety feature which is designed to be removable. It is for the jury then to determine the scope of the product’s intended purposes and whether the product was reasonably safe (see, Lopez v Precision Papers, 67 NY2d 871, affg 107 AD2d 667; LaPaglia v Sears, Roebuck & Co., 143 AD2d 173; McAvoy v Outboard Mar. Corp., 134 AD2d 245; Ayala v V & O Press Co., 126 AD2d 229). Thus, as the moving party, Martin was required to establish as a matter of law that the absence of the safety devices was due to a "material alteration” of the machine.
Martin failed to present any proof that the saw was manufactured with the intent that the safety features remain in place during its use. Although Martin’s expert described the safety features which were shipped with the saw, he never asserted that the removal of such features would require a material alteration of the saw. In fact, the expert indicated that one safety device, the "antikickback finger”, was attached by a single screw (see, e.g., Tuesca v Rando Mach. Corp., 226 AD2d 157; cf., Zuniga v Schmidt & Assocs., 208 AD2d 719). The conclusory statement by Martin’s attorney that the removal of the safety features constituted a substantial modification or alteration of the saw was of no evidentiary value (see, Zuckerman v City of New York, 49 NY2d 557, 563). Since Martin failed to establish its entitlement to summary judgment as a matter of law, the Supreme Court properly denied its motion, regardless of the sufficiency of the plaintiffs opposing papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).