Petition for Writ of Certiorari — Stajano v. United Technologies Corp.

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No an 299 MAR 25 2005

OPFICE OF Thi: ¢:

INTHE es CLAN

Supreme Court of the United States

JULIO CESAR WILSON STAJANO, ET AL.,

PETITIONERS

UNITED TECHNOLOGIES CORPORATION, ETAL.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE

OF NEW YORK, APPELLATE DIVISION,

FIRST DEPARTMENT

PETITION FOR WRIT OF CERTIORARI

PAUL C. MATTHEWS

Counsel of Record

54 Stone Street

New York, NY 10004

(212) 344-1936

Attorney for Petitioners

ata acim aeciaaeniale

CURRY & TAYLOR @ WASH O.C. @ (202) 223-3160 ¢ USSCINFO.COM

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QUESTIONS PRESENTED

1. Whether a military contractor defense bars, as a-

matter of law, claims for defective design without

meaningful participation by the government in the

design, manufacture or acceptance of the accident

helicopter’s component parts which are the subject of the

litigation?

2. Whether a military contractor defense bars, as a

matter of law, claims for defective design and failure to

warn, in the absence of government input or control over

the flight manuals produced by Defendants or evidence

that that the government was provided with warnings

but chose not to include them in the flight manuals?

3. Whether the military contractor defense bars, as a

matter of law, claims for defective design of the

component parts of a civilian-designed helicopter, where

the manufacturer failed to provide notice of available ©

safety components incorporated into other helicopters on

the same assembly line at the same time for sale to

another government?

4. Whether the military contractor defense bars, as a

matter of law, claims for defective design of the

component parts of a civilian-designed helicopter, where

the manufacturer failed to provide alternative safety

components available under the state of the art at the

time of design, and requested by the Government?

INTERESTED PARTIES

The following parties and entities were parties

below and have an interest in the outcome of this

consolidated case:

Plaintiffs - Julio Cesar Wilson Stajano and Ana

Maria Delgatte de Stajano (individually, and as

parents and natural guardians of infant Plaintiff

Chantal Delgatte); Alberto Anibal Lopez

(individually and as parent and natural guardians

of infant Miguel Angel Lopez); Chantal Stajano:

Moina Jack Secco Scorza; and Robert B.

Tchodjuklian.

Defendants - United Technologies Corporation, of

New York, United Technologies Corporation and

Sikorsky Aircraft, Inc.

ill

TABLE OF CONTENTS

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APPENDIX

DECISION AND ORDER OF THE COURT OF

APPEALS OF NEW YORK, DENYING LEAVE TO

APPEAL, ENTERED OCTOBER 26, 2004, STAJANO

V. UNITED TECHNOLOGIES CORPORATION, 3

N.Y.3D 736, — N.E.2D —, ...........ccc.ccscossees povasenseniptibtentacneeeten la

DECISION AND ORDER OF THE SUPREME

COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION, FIRST DEPARTMENT,

DENYING PLAINTIFFS’ MOTION FOR

REARGUMENT OR IN THE ALTERNATIVE,

LEAVE TO APPEAL TO THE COURT OF

APPEALS, ENTERED JULY 1, 2004................................ 2a

DECISION AND ORDER OF THE SUPREME

COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION, FIRST DEPT.,

AFFIRMING DISMISSAL, ENTERED MARCH 23,

2004, 5 A.D.3D 260, 774 N.Y.S.2D 409 (IST DEPT.

=the

DECISION AND ORDER OF THE SUPREME

COURT OF THE STATE OF NEW YORK, COUNTY

OF NEW YORK (KORNREICH, J.S.C.), DENYING

PLAINTIFFS’ MOTION TO RENEW, REARGUE

AND/OR VACATE OCTOBER 22, 2002 DECISION,

ORDER AND JUDGMENT, MARCH 13, 2008 .............0000 5a

nam.

DECISION, ORDER AND JUDGMENT OF THE

SUPREME COURT OF THE STATE OF NEW

YORK, COUNTY OF NEW YORK, GRANTING

SUMMARY JUDGMENT DISMISSING

COMPLAINTS, ENTERED OCTOBER 22, 2002 .............. 7a

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DECISION AND ORDER OF THE SUPREME

COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION, FIRST DEPARTMENT,

AFFIRMING DENIAL OF DEFENDANT'S MOTION

FOR SUMMARY JUDGMENT, ENTEREDJUNE 27,

2000, 273 A.D.2D 162, 711 N.Y.S.2D 718 (1ST DEPT.

DECISION AND ORDER OF THE SUPREME

COURT OF THE STATE OF NEW YORK, COUNTY

OF NEW YORK, DENYING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT, ENTERED

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AUGUST 26, 1958 LETTER/REPORT OF US.

NAVAL AIR MINE DEFENSE DEVELOPMENT

HEARING AND DEPOSITION OF WALDEMAR

RAMON PERDOMO, MONTEVIDEO, URUGUAY,

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EXTERIOR CARGO HOOK, POSITIVE

DISCONNECT EXPLOSIVE BOLT AND

EMERGENCY MECHANICAL PROPOSED CO-

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TABLE OF CITATIONS

CASES

BOYLE V. UNITED TECHNOLOGIES CORP., 487 U.S.

500, 108 S. CT. 2510 (1988). passim

DENSBERGER V. UNITED TECHNOLOGIES CORP., 297

F.3D 66 (2D CIR. 2002), CERT. DENIED, 537 U.S.

ROOT, BBB GCP. Be G ccccnscssscszessesssessassnescensenenscsnttanssonsvennbenens 19, 25

HARDUVEL V. GENERAL DYNAMICS CORP. [878 F.2D

1311, 1316 (11TH CIR. 1989), CERT. DENIED, 494

U.S. 1030, 110 S.CT. 1479, 108 L.ED.2D 615 (19990).............. 24

MILLER V. UNITED TECHNOLOGIES CORP., 233

CONN. 732, 660 A.20) 810 (1995) ........csesecsereseueres 20, 21, 22, 23

TIMBERLINE AIR SERVICE, INC. V. BELL

HELICOPTER-TEXTRON, INC., 125 WASH.2D 305

CESBENIEN BADRIC) nncoccscescsesescrscescscessessnsssestensssessssescessecsssesessesss 25

TREVINO V. GENERAL DYNAMICS CORP., 865 F.2D

1474, 1486(5TH CIR.), REH. DENIED EN BANC, 876

F.2D 1154, CERT. DENIED, 493 U.S. 935, 110 S.CT.

$27, 107 L.ED.2D 317 (1969) ..............cc.csscsceccscssescssececsesscesceces 23

MISCELLANEOUS

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PRELIMINARY STATEMENT

Petitioners, Plaintiffs who suffered severe personal

injuries resulting from a crash of Defendants’ helicopter

as spectators of an air show on the beach in Pocitos,

Montevideo, Uruguay on November 14, i971, Petition for

a Writ of Certiorari to review the Memorandum Decision

and Order of the New York State Supreme Court,

Appellate Division, First Department, affirming dismissal

of their complaints on summary judgment, entered March

23, 2004.(3a-4a).

The dismissal of Petitioners’ complaints was based

solely upon the military contractor defense enunciated in

Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.

Ct. 2510 (1988).

As a result of the Tupamaro Insurrection (Marxist

Leninist Guerillas from Argentina) that captured,

tortured and killed CIA Employee Daniel Mitrioni,

formerly Police Chief Terra Haute, Indiana, in support of

Uruguay’s attempts to quell guerillas, U.S. Government

transferred to Uruguay in Military, two counter-

insurgency helicopters ostensibly equipped for air sea

rescue in 1981.

OPINIONS BELOW

The Order of the New York State Court of

Appeals, denying discretionary review is reported at 3

N.Y.3d 736, -- N.E.2d -—- (October 26, 2004) and is

reprinted at App. P. la.

The July 1, 2004 Decision and Order of the

Supreme Court of the State of New York, Appellate

Division, First Department, denying Plaintiffs’ motion for -

reargument or in the alternative, leave to appeal to the

Court of Appeals, is unreported and is reprinted at App.

P. 2a.

The March 23, 2004 Decision and Order of the

Supreme Court of the State of New York, Appellate

Division, First Department, affirming dismissal of

Petitioners’ complaints, is reported at 5 A.D.3d 260, 774

N.Y.S.2d 409 )(1st Dept. 2004) and is reprinted at App. p.

3a-4a.

The February 28, 2003 Decision and Order of the

Supreme Court of the State of New York, County of New

York, denying Plaintiffs’ motion to renew, reargue or

vacate the October 22, 2002 Decision, Order and

Judgment of the Supreme Court, New York County is

unreported and is reprinted at App. p. 5a-6a.

The October 22, 2002 Decision, Order and

Judgment of the Supreme Court of the State of New

York, County of New York, granting summary judgment

dismissing Petitioners’ complaints is unreported and is

reprinted at App. P. 7a-36a.

The June 27, 2000 Decision and Order of the

Supreme Court of the State of New York, Appellate

Division, First Department, affirming denial of

Defendant’s motion for summary judgment, is reported at

273 A.D.2d 162, 711 N.Y.S.2d 718 (1st Dept. 2000) and is

reprinted at App. p. 37a-38a

The June 7, 2000 Decision and Order of the

Supreme Court of the State of New York, County of New

York, denying summary judgment to dismiss Petitioners’

complaints, is unreported and is reprinted at App. p. 39a-

48a.

STATEMENT OF JURISDICTION

The decision and Order of the New York State

Supreme Court, Appellate Division, First Department

was entered March 23, 2004, affirming dismissal of

Plaintiffs’ complaints. App. p. 3a-4a.

Petitioners’ motion to reargue or for leave to

appeal to the Court of Appeals was denied by the

Appellate Division, First Department Order entered July

1, 2004. App. p. 2a.

Petitioner’s motion for leave to appeal was denied

by the New York State Court of Appeals by Order

entered on October 26, 2004. App. p. la.

Granting a prior motion to enlarge time to file a

Petition for a Writ of Certiorari, this Court extended the

time to file until March 25, 2005. Jurisdiction is invoked

pursuant to 28 U.S.C. §1257(a)(1970).

FEDERAL ISSUES INVOLVED

The instant case was dismissed on the authority

and precedent of Boyle v. United Technologies Corp., 487

U.S. 500, 108 S. Ct. 2510 (1988), wherein this Court

fashioned the federal common law to provide a defense for

a government (military) contractor supplying helicopters

to the United States, based upon, inter alia, a “uniquely

federal interest”. Jd., at 507, 108 S.Ct., at 2516.

The Boyle common law rule protecting a military

contractor is stated as follows:

Liability for design defects in military

equipment cannot be imposed, pursuant to

state law, when (1) the United States

approved reasonably precise specifications;

(2) the equipment conformed to those

specifications; and (3) the supplier warned

the United States about the dangers in the

use of the equipment that were known to

the supplier but not to the United States.

Id., at 512, 108 S.Ct., at 2519.

This Court has also recognized the Federal Tort

Claims Act, 28 U.S.C. §1346(b), as suggesting a

“significant conflict” between federal law and state law

with respect to Government procurement involving

discretionary decision-making, which provides a liability

exemption for:

—,

[aJny claim ... based upon the exercise or

performance or the failure to exercise or

perform a discretionary function or duty on

the part of a federal agency or an employee

of the Government, whether or not the

discretion involved be abused. 28 U.S.C.

§2680(a). Boyle, supra, at 511, 108 S.Ct, at

2518.

———— OC ——

This case was dismissed, on summary judgment,

based upon the “uniquely federal interest” enunciated on

Boyle, supra, and the federal common law enunciated

therein, developing the military contractor’s defense.

STATEMENT OF THE FACTS

In or about December 1957, Defendants, doing

business as Sikorsky Aircraft, Inc., manufactured two

naval helicopters with civilian designation S-58, Army

designation H-34A, Air Force designation H-34, Navy

designation HSS-1, and Marines designation HUS-1. The

two S-58 helicopters’ serial numbers were 143934 and

143941, and were built for the United States Navy, under

Navy designation HSS-1. Although each naval helicopter

was initially intended for anti-submarine warfare and

provided with sonar equipment, these naval helicopters

were also specially designated and equipped for use as

air-sea rescue naval aircraft, with a factory-installed 600

lb. air-sea rescue hoist.

THE CARGO HOOK INSTALLED ABOARD THE

ACCIDENT NAVAL HELICOPTER

Although initially denied by the Defendants, it was

later discovered that Sikorsky intentionally strengthened

both of the naval aircrafts’ hulls, so that each naval

helicopter would be capable of lifting 5,000 lbs, with the

use of a cargo hook, to be subsequently installed. It was

also discovered that in conjunction with the

reinforcement of the subject naval helicopters’ hulls,

Sikorsky also factory-installed all of the internal release

equipment used by the crew of the naval aircraft to

release any load carried by the external cargo hook. This

equipment included safety release mechanisms, both

electrical and mechanical, that would, inter alia, be called

upon by the pilot and/or co-pilot in the event of an

emergency situation, where the cargo would have to be

dropped in order to protect the aircraft and crew.

The release equipment aboard the-aforementioned

naval aircraft consisted of electronic cargo release buttons

on the pilot and co-pilot flight control sticks. A master

“arming” switch was also installed in the naval aircraft,

which prevented the flow of electricity to the button on

the flight control sticks. There was also a single

mechanical release located on the floor of the cabin,

accessible only to the pilot, using his right foot.

According to Robert Nokes, the Plaintiff's expert witness

and a person well familiar with Sikorsky’s manufacturing

and installation procedures, all of the release mechanisms,

which consisted of both a single manual mechanical

system and a separate electrical system (including

switches, electric wiring, wiring harnesses and housings)

inside of the navai helicopter involved in the release of

cargo from a cargo hook were installed by Sikorsky prior

to delivery to the United States Navy.

Mr. Nokes, in reading the specifications for the

subject accident naval helicopter, which was not provided

by the Defendants until October 7, 1998, noted that the

“aircraft is to have ‘PROVISION FOR CARGO.” Thus,

the naval helicopter’s hull was “strengthened and

provided with a means to attach an external cargo hook

with a capacity of 4,000 lb. or subsequently 5,000 Ib.” Mr.

Nokes also read and translated the definition of the term

“PROVISION FOR” in the document to indicate that “all

mechanical and electrical systems associated with the

———— — cargo hook were installed by Sikorsky at the time of

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aircraft manufacture (December, 1957) and prior to

delivery to the United States Government. Said <argo

hook to be attached at a later date by the Government, at

its option.”

The recently obtained information concerning

Sikorsky’s installation of the operating and release

systems for the cargo hook installations was significant,

inasmuch as the Plaintiffs have persistently maintained

that the external cargo hook system was defective.

Moreover, Defendants persistently denied that Sikorsky

had anything to do with the cargo hook assembly.

Subsequently, a Sikorsky Model SP4070 cargo

hook, was, in fact, installed on the subject naval

helicopter. Consistent with certain Sikorsky parts, the

subject cargo hook was manufactured by another

company, Eastern Rotorcraft, but the hook was designed,

tested, approved and sold by Sikorsky for use on the

subject naval aircraft, assigned a part number (SP4070),

and a control drawing number of S1650-62195. Mr. Nokes

identified the hook from photographs taken just prior to

the subject accident.

THE ACCIDENT IN URUGUAY

In March, 1971, both aforementioned naval

helicopters were sold to the Uruguayan Navy, along with

installed cargo hook assemblies, and designated

description Numbers A-061 an A-062.

The naval aircraft were employed by the

Uruguayan Navy in a naval air show demonstration

adjacent to the beach in Pocitos, Montevideo, Uruguay on

November 14, 1971. It was Sunday, and the newspapers

estimate that between 5,000 and 10,000 spectators were

present to witness the air show.

Both naval helicopters were parked with their

lifting blades rotating slowly on a promontory of land

jetting out into the Mar del Plata, a large bay which

serves as the southern border for Uruguay and the

northern frontier for Argentina. Alongside the naval

helicopters was an ice-cream vendor’s building. Located

on this promontory was one of the two naval helicopters

bearing Uruguayan Navy identification number A-061,

under the command of Captain Waldmar Perdomo.

This naval helicopter (A-061) lifted off the ground

and swung over a jeep in order to hook its external cargo

hook to the vehicle, through the use of a four-legged sling,

which was secured to the four quarters of the jeep, and

known as a “four-legged bridle.”

The four-corner hook-up of the vehicle, after being

completed, allowed the naval helicopter to rise into the air

thereby lifting the jeep from its resting position into the

air and over the ocean.

While the jeep was being flown over the ocean, one

corner of the bridle became loose, causing the front of the

jeep to tilt downward which in turn destabilized the naval

helicopter’s flight condition. Captain Perdomo was

unable to sever the cargo. App. p 55a. Unable to sever

the cargo, the naval helicopter swung into shore with its

forward section pointing downward, attempting to land

the Jeep near the site where the flight originated.

ver eS

The destabilized naval aircraft lost altitude

returning to shore and appeared to be pulled down from

the sky by its unbalanced cargo, when the jeep struck the

supporting rocks below the embankment.

The jeep, striking the embankment, became an

anchor, which pulled the naval helicopter to the ground,

where it collided with a second naval helicopter causing a

horrendous fire, explosions, and flying debris field.

The accident caused the immediate death of eight

people and multiple injuries to some 40 to 100 spectators,

including the five infants who brought the present

lawsuit.

CASE HISTORY

This action and the actions of many other injured

Uruguayan citizens arising from the same occurrence

were commenced in New York in 1978 and 1980. The

instant plaintiffs were infants at the time of the

occurrence. After the commencement of these actions,

defendants moved to dismiss on the grounds of forum non

conveniens. The Supreme Court, New York County

(Fraiman, J.) conditionally granted the defendants’

motion on January 10, 1980, and directed defendants to

provide a general appearance in an action to be

commenced in Uruguay, and further directed the

defendants not to raise a Statute of Limitations defense

other than as the Statute of Limitations may have been

applicable on March 23, 1978, the date the first of these

related actions was commenced.

Defendants appealed the January 10, 1980 order to

Appellate Division, First Department, which modified

said order by holding that the actions could be

commenced in Connecticut as well as Uruguay, but

otherwise affirmed. 97 A.D.2d 593, 433 N.Y.S.2d 807 (1st

Dept. 1980)

On July 2, 1980, the Supreme Court (Fraiman, J.)

granted defendants motion to dismiss upon the ground of

Statute of Limitations, but the trial court specifically

exempted all actions brought by plaintiffs who were

infants on the date of the accident, if such actions were

not time barred under New York law by reason of the

infant tolling provision of CPLR §208. This order was

also appealed and affirmed.

Thereafter, actions were commenced in the United

States District Court for the District of Connecticut, on

behalf of all plaintiffs who were infants on November 14,

1971. In clear violation of two separate Orders of the

Supreme Court of the State of New York, both of which

were affirmed on appeal, the defendants moved to dismiss

the complaints based upon a Statute of Limitations

defense. Inasmuch as Connecticut has no infant tolling

provision the plaintiffs’ actions were dismissed on

November 6, 1985 (two (2) actions) and January 29, 1987

(the remaining three (3) actions).

_ On February 13, 1990, the Supreme Court, New

York County (Greenfield, J.) granted plaintiffs’

application to restore the five infant cases to the calendar.

148 Misc.2d 918, 562 N.Y.S.2d 903 (1990). Defendants

again appealed, but the restorations were affirmed on

May 28, 1991. 173 A.D.2d 394, 570 N.Y.S.2d 25 (1st Dept.

1991).

————_—_a

PLEADINGS

Defendants’ September 8, 1991 motion to amend

their answer to add the government contractor’s defense

was granted on May 24, 1992 by the Supreme Court, New

York County (Greenfield, J.). However, Defendants did

not assert a military contractor defense to the accident

aircraft, as subsequently modified, or specifically for the

internal and external components of the cargo carrying

and release systems at issue.

Instead, Defendants made material

misrepresentations about their involvement in the

internal and external cargo carrying and release systems

to the Court and plaintiffs’ counsel. As the trial Court

noted:

THE COURT: Right now, as I understand

it, Mr. Cook is saying we never had

anything to do with cargo slings, hooks or

release mechanisms...

Plaintiffs maintain that a fail safe shear pin would

have severed the jeep, rather than permitting the cargo

to act as a anchor, dragging the naval helicopter to the

ground upon impact with the supporting rocks ashore.

Moreover, a guillotine device, or explosive bolt, would

have permitted another member of the crew to drop the

load when trouble was discovered.

Strikingly, an August 26, 1958 Letter/Report of

U.S. Naval Air Mine Defense Development Unit

requested “that an explosive bolt attaching device be

installed at the tow boom attachment point to assure

release of the tow should the manual and electrical

systems fail.” See, App. p. 49a.' The recommendations of

August 26, 1958 (App. p. 49a) by the U.S. Government to

improve repair and _render positive disconnecting

external cargo are the two items proposed co-pilot release

and positive disconnect explosive bolt integrated into

hook. App. p. 59a.

SUMMARY JUDGMENT GRANTED ON NEWLY

AMENDED MILITARY CONTRACTOR DEFENSE

With at least five (5) prior motions pending before

Justice Schoenfeld, many of which demanded outstanding

discovery requested by Plaintiffs and/or sought to punish

Defendants for long-standing discovery abuses, acting

Supreme Court Justice Kornreich ignored the motions,

and, after the close of discovery, permitted Defendants to

amend their answer, denied Plaintiffs further discovery

on newly added military contractor defenses, and

simultaneously, granted Defendants summary judgment.

However, Defendants were not entitled to

summary judgment, inasmuch as Defendants failed to

prove that the component parts in issue were designed

and manufactured in conformance with reasonably precise

specifications, and that Defendants warned the

Government about known dangers.

. The August 26, 1958 Letter/Report of U.S. Naval Air Mine

Defense Development Unit reported that the “manual hook release

system has never worked under any condition of tension.” The

document also states that the “electrical hook release system has

failed twice.” The document notes a “tow tension of between 2500

and 3000 pounds is the maximum that can be obtained.”

Tellingly, Defendants presented no proof the

component parts in issue were ever ‘signed off’, either in

design or receipt, by the Government, that the

Defendants addressed a request for an explosive bolt to

sever the load, or that the Defendants offered dual

mechanical releases (one for the pilot and one for the co-

pilot), similar to releases installed aboard the same

helicopters sold to Germany, which were a few production

numbers from the accident helicopters.

REASONS FOR GRANTING THE WRIT

Recently, apart from military action there have

been multiple disasters involving various Black Hawk

models:

See VFW Magazine, March 1, 2003 by Tim Dyhouse:

1. Black hawk crash kills four in Afghanistan -

Security - US military helicopter crash.

A USS. helicopter crashed during a

training exercise Jan. 30 in Afghanistan

killing four soldiers. The incident occurred

about six miles east of Bagram Air Base in

an area known as the East Training Range.

A spokesman for U.S. Central Command in

Tampa, Fla., said the crash, which involved

an MH-60L Black Hawk carrying two pilots

and two crew members, was an accident.

See VF W Magazine, September 1, 2003 by Tim Dyhouse:

2. Navy helicopter crash kills four - Security:

See VF W Magazine, May 1, 2003:

3. 11 Killed in Fort Drum crash - Security -

helicopter crash under investigation:

A Black Hawk helicopter crashed

during a March 11 training mission at Fort

Drum, N.Y., killing 11 soldiers and injuring

two. At press time, the Army was still

investigating the cause.

4. Afghanistan crash kills six - Security - helicopter

cras

An Air Force Pave Hawk helicopter

erasned March 23 in Afghanistan killing all

six on board. The crew was conducting a

medical evacuation mission when it crashed

some 81 miles north of Ghazni. US.

Central Command stated the helicopter

was not shot down and was investigating

the cause at press time.

See VF W Magazine, April, 2003 by Tim Dyhouse:

5. Kuwait black hawk crash kills four - Security:

Four U.S. Army soldiers were killed

Feb. 25 when their Black Hawk helicopter

crashed during a training exercise in

Kuwait. A Pentagon spokesman said there

was no indication that hostile fire caused

the crash.

An investigation from a Stratford Program on July

2003, revealed the following:

The Black Hawk helicopter’s troubled

history (Stratford-WTNH, Apr. 29, 2003

6:00 PM) - They are a work horse of the US

military but there are questions about

what’s going into the Connecticut built

Black Hawk. They're used all over the

military and made here in Connecticut. A

Team 8 investigation has uncovered

questions about the Black Hawk and how

it’s made.

The move follows a Team 8 investigation

showing defective parts are sometimes

slipping through the company’s quality

inspection process, and that the Defense

Department has cited Sikorsky for 19

quality control problems.

This month, a company which processed

parts for a Sikorsky supplier was indicted.

in California. Reporter John Donnelly

investigated the case for Defense Week

magazine and says Sikorsky was unaware

one of its sub-contractors was doing

business with a firm making faulty parts.

“Sikorsky and other manufacturers failed in

their oversight of their sub contractors to

detect this flaw,” Donnelly said.

It’s one thing for bad parts to show up on

the production line, but is there any

evidence of defective parts getting to

aircraft at military bases? The answer

Team 8 has learned is yes.

According to a Sikorsky document obtained

by News Channel 8, 8-months after the

Defense Department ordered Sikorsky to

fix it’s quality control problems, the

commanding officers at two military bases

“complained” bolts on replacement engine

mounts supplied by Sikorsky wouldn’t fit

the holes they were suppose to go through.

“The AFT engine mount,” explained Allen

Haggerty.

“An important part?”

“Certainly.”

It’s not the only example we found. In

April, leaks were discovered in a gear box

on a Black Hawk helicopter. Sikorsky

engineers noting in the past “the supplier

had not been following the correct bonding

procedure.” .

In the meantime, the Army says it appears

four recent fatal crashes of the Black Hawk

were due to either human or environment

factors, not mechanical problems.

However, the Army says three other recent

Black Hawk accidents were due to

mechanical failures.

The Defense Department tells News

Channel 8 Sikorsky “has terminated its

business relationships with several vendors

which do not meet their standards.”

The cumulative history of helicopter accidents,

resulting from defective civilian design, defective

manufacture and defective construction have only begun

resulting in aircraft catastrophes mostly involving the

passengers and crew of said helicopters.

Now as the production and use of helicopters

increases along with concomitant defective construction

and design, the quantity of injuries will dramatically

increase for the operators and passengers of said

helicopters.

The increase in helicopter disasters will affect

innocent bystanders on the ground, and identical to the

instant litigation commenced by the innocent spectators

in Uruguay, those innocent victims on the ground will

have their action for injuries or death shunted aside,

blunted or denied due process by being dismissed under

an overbroad military contractor defense.

NEW YORK STATE COURTS MISUNDERSTAND

THE SHOWING REQUIRED TO INVOKE THE

MILITARY CONTRACTOR DEFENSE ENUNCIATED

IN BOYLE, SUPRA, AND DEPRIVED PETITIONERS

OF THEIR DAY IN COURT BASED UPON AN

UNRESTRAINED APPLICATION OF THIS COURT’S

JUDICIALLY CREATED DEFENSE.

The Appellate Division, First Department,

affirmed the trial court’s summary deprivation of

Petitioners’ day in Court based upon Boyle, supra. The

dismissal occurred in the absence of evidence that the

internal and external components of the cargo carrying

and release systems at issue in the instant helicopter

disaster were approved, at all, by the Government. In

fact, the Defendants even disputed the type of hook

identified by Petitioners’ expert witness. No

Government-supplied specifications or approval for the

Sikorsky hook and component parts identified by

Petitioners were ever exhibited by the Defendants.

This case is a prime example of the dangers

inherent in a “rubber stamp” application of the military

contractor defense. As a result, and as foreseen in Justice

Brennan’s dissenting opinion in Boyle, innocent

bystanders injured by a helicopter initially designed for

civilian use have been “rubber stamp(ed]” out of Court for

severe injuries resulting from design defects and failures

to warn which were plainly avoidable.

IN DISMISSING PETITIONERS’ FAILURE TO WARN

CLAIMS BASED UPON’ THE MILITARY

CONTRACTOR DEFENSE, THIS CASE STANDS IN

STARK CONTRAST TO BOYLE PROGENY.

The state courts paid little, if any, attention to

Densberger v. United Technologies Corp., 297 F.3d 66 (2d

Cir. 2002), cert. denied, 537 U.S. 1147, 123:S.Ct. 876 which

applied the three prong of Boyle, supra, to the military

contractor defense in failure to warn cases.

Certiorari is sought not only to reverse the

dismissal of five severely injured citizens of Uruguay, but

also to correct and assist application of the federal

common law by the Courts of the State of New York, and

protect our servicemen and people across the world, the

latest being survivors of the tsunamis in Asia, from a

perfunctory application of Boyle, supra and erroneous

release of manufacturers from liability pursuant to the

military contractor defense.

The ease at which the Appellate Division affirmed

the Supreme Court’s deprivation of Petitioners’ rights on

summary judgment should not pass unnoticed. The

instant record before the state courts contained literally

dozens of disputed issues of material facts. Nevertheless,

despite a dispute as to the actual component parts

involved in the accident, and Defendants’ failure to

present evidence that the actual component parts in issue

complied with any specifications, the manufacturer was

relieved of liability. |

Finally, the Court of Appeal’s refusal to grant

discretionary review of such an enormous violation of

Petitioners’ rights, and the fundamental tenet that

entities be held accountable for their wrongful conduct,

warrants review by this Court to ensure that the military

contractor defense enunciated in Boyle, supra, does not

become a “rubber stamp” justification to deprive injured

parties a claim against defective engineering which was

not required by our Government.

POINT I

THE COURTS’ SUMMARY DISMISSAL OF

PETITIONER’S CLAIMS PURSUANT TO THE

MILITARY CONTRACTOR DEFENSE -IS- AN

ERRONEOUS AND DANGEROUS PRECEDENT

THAT WARRANTS INTERVENTION BY THIS

COURT.

It is well-known that “summary judgment is not

well suited to the disposal of complex cases.” Miller v.

United Technologies Corp., 233 Conn. 732, 660 A.2d 810

(1995)(design/manufacture and failure to warn respecting

component in F-16B fighter aircraft). This is particularly

true, where, as here, the “case presents an extraordinary

technical and multifarious factual labyrinth.” /d.

Moreover,

[f]ederal common law provides support for

the proposition that this case should not be

disposed by summary judgment. It is well

established that whether a contractor is

shielded from liability by the government

contractor defense may be either a question

of law or a question of fact. 3 L. Frumer &

M. Friedman, Product Liability (1994)

§3.40[1]. This was clearly set forth in

Boyle, which, applying federal law, stated

that whether the facts establish the

conditions for the government_contract

defense is a jury question [emphasis added].

Boyle v. United Technologies Corp., supra,

487 U.S. 500, 108 S. Ct. 2510. Only if “no

reasonable jury could find . . . on the basis

of the evidence presented, that the

Government contractor defense was

inapplicable” is a defendant entitled to

judgment as a matter of law. Id., at 514, 108

S.Ct. at 2519-20. Miller, supra, at 775, 660

A.2d 810, 833, n. 28.

The Miller Court further held:

Finally, a summary determination that the

plaintiff had failed to prove a

manufacturing defect was an inappropriate

basis for summary judgment on this issue.

First, the defendants must satisfy

the three elements of Boyle before the

burden shifts to the plaintiffs to present

evidence of a manufacturing defect

[emphasis added]. Bailey v. McDonnell

Douglas Corp., supra, 989 F.2d at 802. “To

say that a product failed to conform to

specifications is just another way of saying

that it was defectively manufactured.”

Harduvel v. General Dynamics Corp.,

supra, 878 F.2d at 1321.

Thus, the trial court must first

analyze, according to the elements of Boyle,

the plaintiffs various claims that the fuel

pump did not conform to specifications.

Only if the trial court determines that the

defendant has satisfied i..e three elements

of Boyle for each of the alleged

specifications must the court consider the

plaintiff's proof of a manufacturing defect

[emphasis added]. Jd. In Bailey, the court

determined that “[b]ecause [the defendant]

did not present evidence that the three

Boyle conditions were satisfied with

respect to the [specification at issue], upon

which Bailey’s manufacturing defect claim

was based, it did not meet its burden of

proof with respect to that claim; and,

therefore, the burden did not shift to Bailey

to present evidence to support her claim.”

Bailey v. McDonnell Douglas Corp., supra,

at 802. As we have previously stated, in

this case, the trial court failed properly to

engage in the initial Boyle analysis. For

these reasons, we conclude that the trial

court improperly granted summary

judgment for Pratt & Whitney and

Chandler- Evans. Miller, supra, at 779, 660

A.2d 810, 834.

In the case at bar, Defendants failed to

demonstrate any precise specifications proscribed by the

government for its external cargo carrying system or

internal component parts at all. Defendants likewise

failed to demonstrate that the external cargo carrying

system and internal components for the accident

helicopter complied with these absent specifications. The

DD-250, a conditional acceptance form by the government

was signed in 1957, seven years prior to the insallation of

the external cargo hook and the connection of the internal

parts for the cargo carrying system. Obviously, the DD-

250 in 1957 did not approve the external cargo carrying

system later installed.

More importantly, Defendants never offered any

DD-250 for the particular Sikorsky external cargo

carrying system, the cargo hook or the internal

components (all of which components are at issue in this

action) which were installed aboard the accident

helicopter. Nor did Defendants provide admissible proof

by witness with actual knowledge that the particular

external cargo carrying system, the cargo hook and the

internal components involved in the subject accident

conformed to any specifications at all.

It bears emphasis that the DD-250 provided by

Defendants related to the delivery of the accident aircraft

prior to the time that Sikorsky’s component parts

involved in the subject accident were installed in the

aircraft. Moreover, the state courts disregarded

Defendants’ own approved publications which admit that

the civilian S-58 helicopter was designed prior to

production for military use.

Even if the U.S. Navy made a subsequent rubber

stamp approval (which it did not) of the component parts

in issue, this clearly would not afford Defendants the

benefits of a military contractors defense as to the

external cargo carrying system and its components.

Miller, supra, at 760, 660 A.2d 810, 825-26 (“The approval

must constitute more than a mere ‘rubber stamp’ by the

government. Trevino v. General Dynamics Corp., 865

F.2d 1474, 1486 (5th Cir.), reh. denied en banc, 876 F.2d

1154, cert. denied, 493 U.S. 935, 110 S.Ct. 327, 107

L.Ed.2d 317 (1989). Rather, it must be the result of a

‘continuous back and forth’ between the contractors and

the government. Harduvel v. General Dynamics Corp.

[878 F.2d 1811, 1816 (11th Cir. 1989), cert. denied, 494

U.S. 1030, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990)].”)

Defendants offered absolutely no evidence to

establish any ‘continuous back and forth,’ any testing or

any negotiation with the government in the design and

manufacture of the external cargo carrying system at all.

It bears emphasis that the drawings of the cargo hook and

other components were completely devoid of any

government acceptance. Moreover, other than a general

desired capacity of the external cargo carrying system,

Defendants offer no “reasonably precise specifications”

concerning the design of the external cargo carrying

system.

To the contrary, the August 26, 1958

Letter/Report of U.S. Naval Air Mine Defense

Development Unit clearly gave Defendants notice that

the cargo hook was defective, and failed to release.

Defendants did not explain any response to the

Government’s request for an explosive bolt to sever the

load in the event of emergency. Moreover, explosive

bolts, of the type used at the time on the rescue hoist for

the accident helicopter, were clearly state of the art at the

time of design of the aircraft, having been employed on

the 600 lb. rescue hoist.

The state courts’ refusal to permit a jury to

determine clearly disputed issues of fact surrounding

Defendants’ military contractor defense requires

guidance from this Court.

POINT II

THE STATE COURT’S’' DISMISSAL OF

PETITIONERS’ FAILURE TO WARN CAUSE OF

ACTION VIOLATES BOYLE PROGENY.

In Densberger v. United Technologies Corporation,

297 F.3d 66 (2d Cir. 2002), The Second Circuit enunciated

three requirements of the Boyle test for failure-to-warn

cases: (1) ‘government control over the nature of the

warnings’; (2) ‘compliance with the Government’s

directions’; and (3) ‘communication to the Government of

all product dangers known to it but not the Government.’

Id., at 75, n. 11. See also, Timberline Air Service, Inc. v.

Bell Helicopter-Textron, Inc., 125 Wash.2d 305 (1994)(en

banc)(military contractor defense to claims for failure to

warn, independently subject to requirements of Boyle).

Densberger, in discussing the third prong, recognized:

A defendant, for example, might well be

unreasonable in failing to warn about

information already known to the purchaser

if the defendant was unaware that the

purchaser had the information. The

instruction is also wrong with respect to the

causation issue, because it is possible that if

the Army had been warned of the danger of

which it already knew, it might have

warned the pilots, and would have done so

even if, absent a warning, it had failed to

caution them. Thus, UTC’s warning might

have led the army to say, “Gee, if this

danger (of which we’re already aware) is

important enough so that UTC decided to

warn us of it, we’d better let the pilots

Cone ee

know about it too.” UTC’s proposed charge

ignores this, as well as other, similar,

possibilities. /d., at 73.

In the complete absence of any proof that

Defendants were prohibited by the U.S. Navy from

providing warnings of the failures and defects of the

external cargo carrying system, or from providing

procedures for emergency release or safe flight during an

emergency, Defendants clearly were not entitled to

summary judgment on their military contractors defense

as against Plaintiffs’ claims for failure to warn.

It bears emphasis that Petitioners’ witnesses

included a former helicopter pilot and long-term Sikorsky

employee who confirmed that, despite Defendants’

unsupported claims to the contrary, Sikorsky wrote the

flight training manual for the Government.

The New York State Courts’ departure from the

mandates of this Court’s decisional law, and the decisions

of the United States Court of Appeals for the Second

Circuit, not only permit and encourage the appellate

jurisdiction of this Court, but necessitate such corrective

action.

errr errr

CONCLUSION

It is respectfully requested that this Petition for a

Writ of Certiorari be granted and that this Court exercise

its jurisdiction.

Respectfully submitted,

Paul C. Matthews, Esq.

Counsel of Record

54 Stone Street

New York, New York 10004

(212) 344-1936

Attorney for Petitioners

(Any footnotes trail end of each document)

State of New York, Court of Appeals

Julio Cesar Wilson Stajano, et al.,

Appellants,

Vv.

United Technologies Corporation, et al.,

Respondents.

3 N.Y.3d 736, --- N.E.2d ---

October 26, 2004

A motion for leave to appeal to the Court of Appeals in

the above cause having heretofore been made upon the

part of the appellants herein and papers having been

submitted thereon and due deliberation having been

thereupon had, it is

ORDERED, that said motion, insofar as it seeks leave

to appeal from that part of the March 2004 Appellate

Division order that affirmed the dismissal of appellants’

complaint, be and the same hereby is denied; and it is

ORDERED, that the said motion, insofar as it seeks

leave to appeal from the remainder of that order and

from the July 2004 Appellate Division order denying

reargument or, in the alternative, leave to appeal to

this Court, be and the same hereby is dismissed upon

the ground that the remainder of the March 2004

Appellate Division order and the July 2004 order o not

finally determine the action within the meaning of the

Constitution.

Supreme Court of the State of New York,

Appellate Division,

First Judicial Department

Julio Cesar Wilson Stajano, et al.,

Plaintiffs-Appellants,

United Technologies Corporation, et al.,

Defendants-Respondents.

July 1, 2004

Plaintiffs-appellants having moved, by separate

motions, for reargument (M-1886) of or, in the

alternative, for leave to appeal to the Court of Appeals

(M-1977) from the decision and order of this Court

entered on March 23, 2004 (Appeal Nos. 3205, 3206,

3207 & 3208),

Now, upon reading and filing the papers with respect to

the motions, and due deliberation having been had

thereon,

It is ordered that the motions are denied.

——— ON

Supreme Court of the State of New York,

Appellate Division,

First Department

Julio Cesar Wilson Stajano et al.,

Plaintiffs-Appellants

United Technologies Corporation et al.,

Defendants-Respondents.

March 23, 2004

5 A.D.3d 260, 774 N.Y.S.2d 490

Order, Supreme Court, New York County (Shirley

Werner Kornreich, J.), entered on or about October 22,

2002, which, in granting defendants leave to amend

their answers, nunc pro tunc, to include government-

contractor defenses, further granted defendants’

motion for summary judgment dismissing the action in

its entirety, and denied, as academic, all pending

motions and cross motions, and order, same court and

Justice, entered March 13, 2003, which, to the extent

appealable, denied plaintiffs’ motion for renewal,

unanimously affirmed, without costs. Appeal from

order, same court and Justice, dated August 22, 2002,

which denied, with leave to renew, plaintiffs’ motion for

an order granting open commissions to depose

defendants’ former employees, and failed to dispose of

defendants’ cross motion to strike extraneous matter

from the record, and their motion to amend and for

summary judgment, unanimously dismissed, without

costs.

A prior motion for summary judgment was premature,

given that disclosure had not yet been completed (see

273 A.D.2d 162 [2000]). Having now obtained the

materials necessary to resolve previously open

questions of fact, defendants’ motion for summary

judgment, based on a more detailed government-

contractor defense, was appropriate.

Plaintiffs were not prejudiced by the grant of leave for

defendants to amend their answer, inasmuch as the

former has been on notice, for more than 10 years, that

leave was previously granted to assert a more

particularized affirmative defense on whether the

helicopters in question conformed to government

specifications and whether modification or alterations

had been made in the systems employed. The newly

amended affirmative defenses satisfied the three-

pronged test of government approval of reasonably

precise specifications, conformity to those

specifications, and a warning to the government about

dangers known to the contractor in the use of the

equipment (Boyle v United Tech. Corp., 487 US 500,

512 [1988]). Summary judgment was thus properly

granted.

We have considered plaintiffs’ remaining contentions

and find them to be without merit.

Concur--Buckley, P.J., Tom, Andrias and Gonzalez, JJ.

~ Sree RR I pre mite Se.

ta he

Supreme Court of the State of New York,

First Judicial Department

Julio Cesar Wilson Stajano et al.,

Plaintiffs,

United Technologies Corporation, et al.,

Defendants.

February 28, 2003

Upon the foregoing papers, it is ordered that this

motion by plaintiffs to renew and/or reargue a prior

motion, by defendants for, inter alia, summary

judgment, and for vacatur of this Court’s Order thereon

dated October 8, 2002, pursuant to CPLR 2221,

5015(a)(2) and 5015(a)(3), is denied.

Plaintiffs have not established that the Court

overlooked or misapprehended either the facts or the

law in determining the prior motion. CPLR 2221(d)(2),

(f). See Pro Brokerage, Inc. v. Home Ins. Co., 99 A.D.2d

971 (1984). Accordingly that branch of their motion

which seeks reargument is denied.

Renewal is also denied, as the allegedly new material

submitted on the instant application would not have

changed the prior determination. CPLR 2221(e)(2), (f);

CPLR 5015(a)(2). Plaintiffs additionally fail to establish

that the allegedly “newly discovered” evidence was not

in fact available to them on the original application; and

they do not proffer a satisfactory excuse for not having

submitted the “new” facts sooner. See Guerrero v.

Dublin Up Corp. Of New York, 260 A.D.2d 435 (2nd

Dept. 1999); Lee v. Ogden Allied Maintenance Corp.,

226 A.D.2d 226, 227 (1st Dept. 1996), appeal dismissed

89 N.Y.2d 916 (1996). Notably, plaintiffs submit an

Affidavit, dated December 2, 2002, from one George J.

Munkenbeck, Jr., who claims -- on the basis of ill-

defined expertise derived from an equally ill-defined

professional connection with the U.S. Coast Guard -- to

have interpreted a number of government documents

from the 1950’s -- allegedly only recently de-classified --

to mean, inter alia, that defendants’ dat and witness es

on their prior application were either mistaken or else

were downright fraudulent. CPLR 5015(e). The Court

finds neither Mr. Munkenbeck’s credentials nor his

representations to be convincing.

Shirley Werner Kornreich, J.S.C

Index No. 003052/1980

SUPREME COURT OF THE STATE OF NEW

YORK

COUNTY OF NEW YORK: IAS PART 28

JULIO CESAR WILSON STAJANO and ANA

MARIA DELGATTE de STAJAN O, as parents and

natural Guardians of infant Plaintiff CHANTAL

DELGATTE STAJANO, and JULIO CESAR WISON

STAJANO and ANA MARAI DELGATTE de

STAJANO, individually,

Plaintiffs,

-against-

UNITED TECHNOLOGY CORPORATION OF NEW

YORK CITY nad UNITED TECHNOLOGIES

CORPORATION and SIKORSKY AIRCRAFT, INC.,

Defendants.

DECISION, ORDER and JUDGMENT

KORNREICH, !:

Motion sequence numbers 35, 37 and 38 are herewith

consolidated for disposition. fn1

I. BACKGROUND:

In five consolidated actions, plaintiffs Alberto Lopez,

Miguel Lopez, Julio Stajano, Robert Tochodjuklian, and

Teresa Aparicio fn2 alleged that on November 14, 1971,

they were injured when a helicopter - which had been

manufactured by the Sikorsky Aircraft division of

defendants United Technologies Corporation of New

York City and United Technologies Corporation --

crashed at a waterside air show in Pocitos, Montevideo,

Uruguay. The Lopez plaintiffs originally commenced

their actions for strict products liability (e.g., defective

design, negligent manufacture, and failure to warn) in

1978, and the others in 1980. After many years of

pretrial procedural wrangling, the cases were

transferred to another jurisdiction. However, Justice

Edward Greenfield of the Supreme Court, New York

County reinstated them in this Court on February 13,

1990. fn3 Throughout their long history, the actions

have been plagued by protracted delays followed by

periods of frenetic motion practice -- e.g., applications

to strike or amend pleadings, quarrels over discovery,

and motions to dismiss or for summary judgment. By

November of 1997, all of the cases save the instant

Stajano action were resolved. Currently before the

Court are: (a) a motion by defendants seeking leave to

serve and file a Second Amended Answer (#85); (b)

defendants’ motion for summary judgment (#35); and

plaintiffs (#37 and #38).

A. The Accident:

According to a contemporaneous account of the event

published by the local Uruguayan newspaper E] Dia, on

which plaintiffs rely, the accident came about as

follows: Some 5,000 - 10,000 spectators had assembled

on a bluff and beach in Pocitos, Montevideo, Uruguay

on the afternoon of Sunday, November 14, 1971, to

witness an air show being put on by the Uruguayan

military. At approximately 5:25 p.m., Uruguayan Navy

Captain Waldemar Ferdomo as Pilot, assisted by

Amilear Gonzalez as Co-Pilot, got into a helicopter

(“Helicopter A’), which was parked on the bluff some

seven meters above the beach and waters of the Mar

del Plata, Beside Helicopter “A” was parked a second

helicopter of the same basic design (“Helicopter B”).

Both aircraft had been purchased by Uruguay from the

U.S. government in 1971. fn4

Perdomo and Gonzalez undertook to demonstrate that

Helicopter A could transport a jeep across the water.

“For this,” the translated El Dia article explains, the

pilots’ “land helpers placed strong belts to the vehicles

sic forming a mooring. This was hung at one of the

aircraft’s flanks by means of a small crane.” For reasons

that are not explained, the operation did not run

smoothly, and “the pilot had to make several attempts

to haul the vehicle up.” At length, the “land helpers”

managed to secure the “belts” around the jeep in such a

way that the helicopter could lift into the air with the

jeep “hanging beneath it”. fn5

The helicopter with its dangling jeep flew out over the

ocean. However, suddenly one of the “belts” booked to

the front of the jeep came “unfastened,” and the

released corner of the vehicle Sagged sharply

downward. When the jeep became unbalanced, the

helicopter’s center of gravity shifted and the aircraft

began to lose altitude. The pilot headed back to shore,

intending, apparently, to land the helicopter near where

the flight had originated. However, as Helicopter A,

progressively losing altitude, approached the bluff

where Helicopter B was still idling, the jeep slammed

into the side of the cliff. The impact yanked the

helicopter forward and down, causing it to crash onto

the top of the still-parked Helicopter B -- with great

10a

force and with its propeller still rotating. The fuel tanks

of both aircraft exploded. In the ensuing conflagration,

metal projectiles -- e.g., shards of rotor blades, and

bullets from the machine Bans that had been inside the

two cockpits -- erupted in all directions, dismembering

and killing eight people instantly, and injuring 40-100

others. Miraculously, the crew of both aircraft,

including Pilot Waldemar Ferdomo and Co-Pilot

Amilcar Gonzalez, managed to escape with their lives.

B. Plaintiffs’ Theoryof Defendants’ Liability:

Plaintiffs, who were children at the -time of this

accident, were among the injured. To date, they have

not been successfully deposed or medically examined by

the defendants. fn6 In addition, plaintiffs’ counsel has

apparently never interviewed Pilot Perdomo, Co-Pilot

Gonzalez, other passengers on Helicopter A (if any), the

‘and helpers” who fastened the jeep to the aircraft,

personnel on Helicopter B, or any of the spectators --

save one -- at the air show. The sole version of the

foregoing events that has been supplied to the

defendants and to this Court by plaintiffs is contained

in newspaper articles such as the El Dia item

summarized above, and in an affidavit from one air

show witness, Carlos Tochodjuklian, dated March 1999.

Tochodjuklian’s account contains no description of how

the jeep was attached to the helicopter. His narrative

regarding the how the collision came about tracks that

of the El Dia journalist, except for the addition of the

following sentence at the end of Tochodjuklian’s

affidavit: “The carrying hook connected to the bottom

of the lifting helicopter never opened from the time the

helicopter was over the water until the time the jeep

struck the rocks.”

lla

Plaintiffs’ original expert, Robert N okes, is a retired

pilot and yendor of Sikorsky helicopter parts. Nokes

drafted several affidavits between December 1998 and

May 2002, during the course of which plaintiffs’ theory

of the accident may be said to have evolved. Briefly,

Nokes suggests that the electrical “cargo release”

switch on the pilot’s and co-pilot’s cyclic control sticks

“must have” malfunctioned (“manufacturing defect #1”);

that the back-up mechanical cargo release pedal on the

cockpit floor next to the pilot’s right foot “must have”

failed as well (“manufacturing defect #2”), and that the

design of the aircraft was defective because there was

no redundant “foot pedal” close to the co-pilot by means

of which the jeep could have been jettisoned (“design

defect #1”). A comprehensive exposition of plaintiffs’

basic theory of defendants’ liability is supplied by

Nokes on (unnumbered) pages 3-4 of his Affidavit dated

March 29, 1999, as follows:

Helicopter pilots receive a great deal of instruction in

carrying external loads. Part of this instruction includes

the drumming into them that if anything goes wrong

while carrying an external load, the first thing they are

to do is to release the load. This is called ‘pickle the

load.’ Instructors emphasize the fact that no load is

worth endangering the aircraft.

If one of the straps holding the Jeep came loose, as it

appears in the photographs, this instability would

immediately be noticed by the pilot. He would feel a

Jerk’ throughout the aircraft when the strap carne

loose. The photos I examined clearly show the load

tilting downward. The pilot, by reflex, would

immediately attempt to ‘pickle’ (release) the load by

means of the electrical release button located on his

12a

control stick. Upon realization this action did not in fact

release the load, he would have to have the co-pilot take

control of the pedals, while he attempted to

mechanically release the load utilizing the emergency

load release pedal located on the floor to his right. In

order to accomplish this maneuver, he must take his

feet off the control pedals. The emergency release is a

vertically operated, spring loaded device. located on the

right side of the cockpit floor and must be activated by

the pilot’s right foot.

It is logical to assume that the electrical and mechanical

release mechanisms failed on this aircraft.

Both pilot and co-pilot have electrical release capability

so both would automatically use their reflex actions to

attempt to release the load. However, in this model

helicopter only one emergency mechanical release is

available. This is located on the floor to the right of the

pilot. The co-pilot cannot avail himself of this release

mechanism. He is completely blocked from using it by

the center console.

One can conclude that this equipment failed to function

by reason of a manufacturing defect, a design defect, or at

both. This model helicopter is designed without a dual |

[mechanical] emergency release system There is no

other emergency or fail-safe method of opening the |

cargo book under the conditions described (emphases

supplied).

C. Discovery regarding inter alia, the helicopter’

design:

After twice having had their Note of Issue stricken for

aici

13a

failure to complete discovery, on February 16, 2000,

plaintiffs filed a third Note of Issue, in accordance with

an oral Order of Justice Schoenfeld, issued in chambers

on February 9, 2000, allowing discovery to continue

while the case remained on the trial calendar.

Defendants again moved to strike and for assorted

other relief, while plaintiffs cross-moved to preclude, to

compel defendants to produce a witness with

knowledge for deposition, and for depositions of certain

out-of-state witnesses * among other things.

In his 28-page Order dated January 11, 2001, Justice

Schoenfeld formally allowed discovery to continue

while the case remained on the trial calendar. The

Court did direct, however, that all discovery had to be

concluded by March 9, 2001, including, inter alia ,

depositions and physical examinations of the plaintiffs

in New York City; Mr. Heller’s depositions of two out-

of-state witnesses who were allegedly knowledgeable

about defendants’ helicopters (depositions which in fact

the Court had already authorized in a prior Order dated

January 4, 2000, but which Mr. Heller had never set

up); and a deposition of a party witness for defendants -

to the extent possible, a person “with knowledge” “of

the HSS-1’s design, manufacture, maintenance, sales,

servicing, repair and alteration to cargo lifting

capabilities.”

Mr. Heller once again failed to make the necessary

arrangements to depose the two out-of-state witnesses.

The fiasco attending the depositions and medical

examinations of the plaintiffs in March-May 2001 has

already been described in footnote 6, above. Finally,

defendant’s witness -- retired Professional Engineer

Leon Jacobson, who had worked for Sikorsky between

l4a

1953 and 1990, as, inter alia, its Director of Aircraft

Design - was produced for deposition on January 25 and

26, 2001. When the deposition broke off at 4:50 p.m. on

the second day, Mr. Heller announced that he did not

consider the EBT of Jacobson to be concluded.

Nevertheless, Mr. Heller did not thereafter schedule its

resumption; and he did not respond to defendants’

counsel’s letter of February 7, 2001 offering to produce

Mr. Jacobson to complete his deposition before the

Court’s March 9, 2001 deadline.

Defendants have now supplied a comprehensive dossier

of printed materials, documenting the evolution of the

subject helicopter’s design. As a guide to these

materials, Leon Jacobson has presented a 30-page

Affidavit, dated July 18, 2001. Plaintiffs in the

meantime have also retained an engineering expert,

one Robert J. Waldron, Ph.D., a metallurgist who

specializes in the investigation of aircraft accidents --

particularly ones involving helicopters. Dr. Waldron

has submitted a $-page affidavit, dated November 16,

2001, in which he basically subscribes to Mr. Nokes’s

theory of the case -- viz., that both the electrical and

mechanical cargo release systems “must have”

malfunctioned in Ferdomo’s helicopter, and that the

release system in the aircraft had been badly designed,

inter alia, for failing to have a redundant foot pedal on

the co-pilot’s side of the cockpit.

Mr. Jacobson and Dr. Waldron are in agreement

regarding the evolution of the subject helicopter, which

Dr. Waldron characterizes as “the military helicopter

identified as BUNO 143941.” The prototype,

denominated XHSS-1, was conceived by Sikorsky

Aircraft in or around 1952 as a military aircraft

l5a

designed to assist in anti-submarine warfare. During

the 1959s and thereafter, the U.S. Navy operated a

Bureau of Naval Weapons Office (“BNWO”) on the

Connecticut premises of Sikorsky Aircraft, under the

supervision of a civilian engineer named Leo Miller.

Miller and ten other BNWO engineers worked closely

with Sikorsky Aircraft engineers to ensure that the

company’s helicopter configurations conformed with the

government’s various aircraft detail specifications. This

was necessary, inter alia, because the XHSS-1 family of

helicopters was intended to be launched from Navy

cruisers and carriers, for the purpose of, inter alia,

seeking out and/or attacking enemy submarines.

Among the “offspring” of the XHSS-1 were the HUS-1

and the HSS-1. The HUS-1 model came equipped with

an external cargo carrying sling, a sling installation, a

cargo hook with an automatic load release (i.e., that

would release the cargo when it touched the ground),

and normal and emergency release controls inside the

cockpit. The U.S. Navy Detail Specifications that

Sikorsky was to follow in creating the Model HUS-1

helicopter fill 150 pages.

The HSS-1 model at issue here, however, was a variant

of the HUS-1. It was designed to carry two pilots and

two sonar operators if sent out on a “search,” or two

crewmen and two MK 43 torpedoes if dispatched to

“attack.” Unlike the HUS-1, the HSS-1 did not have an

external cargo-carrying sling. Rather, with respect to

the HSS-1, the U.S. Navy’s Detail Specifications

required only that “strength” would be provided in the

fuselage in order to permit the possible future

installation of a cargo sling. To quote plaintiffs’

engineering expert, Dr. Waldron:

16a

The accident helicopter (BUNO 143941) was delivered

to the U S. Navy as a Model HSS-1 helicopter. The first

HSS-1 helicopter was delivered to the U.S. Navy in

March 1955. BUNO 143941 was delivered on December

9, 1957. The primary mission of the Model HSS-1 was as

-an anti-submarine search and-attack., helicopter.

The HSS-1 model (including BUNO 143941) was not

delivered to the U.S. Navy equipped with an external

sling assembly. However, the design requirement

specification . . . did include [that] ... ‘[s]trength shall be

provided in the fuselage structure for the possible

future installation of a cargo sling capable of carrying

4000 pounds external load [later upgraded to 5000

pounds] ....fn7

When, on December 9, 1957, Sikorsky Aircraft

delivered the instant HSS; 1 BUNO 143941 to the

Navy, the U.S. Navy inspector accepting shipment

signed a document (“Form DD 250”) certifying that the

aircraft conformed to the government’s contract

specifications (ie., the design dictated in “U.S.N. Detail

Spec. SD-493-1-1 dated 26 April 1956”). See Exhibit 6 to

Jacobson Affidavit. Before the government received

the instant HSS-1, it had already taken delivery of 184

similar HSS- |’s produced by Sikorsky Aircraft, and

would subsequently take delivery of an additional 30.

It is not disputed that after the BUNO 143941 was

delivered by defendants to the U.S.Navy on December

9, 1957, it was never returned to any Sikorsky Aircraft

plant for any reason at any time. Rather, BUNO 143941

remained in the service of the U.S. Navy for the next 13

years, during which period the Navy modified and

renamed BUNO-143941 several times before retiring it

17a

in 1970.

Of relevance to this lawsuit is the 1964-1966 conversion

of the BUNO 143941 into an external cargo-carrying

UH-34J. In the words of plaintiffs’ expert, Dr. Waldron:

“On December 5, 1964, BUNO 143941 was designated

as a Model UH-34J. Conversion to a Model UH-34J

included installation of an external cargo sling assembly

which the HSS-1 was originally designed to

accommodate.” The modification was performed by

Navy engineers, using Sikorsky-supplied drawings and

parts which had previously been approved by the U.S.

Navy for use in the Sikorsky HUS-1. The conversion

included the U.S. Navy’s own “Cargo Hooks Parts Kit,”

consisting of, inter alia, a “Cargo Release Hook”

manufactured by Eastern Rotorcraft Corp. of Willow

Grove, Pennsylvania. Defendants admit that Sikorsky

had supplied the original drawing on which Eastern

Rotorcraft cargo release hook was based. However,

BNWO.had approved all of Sikorsky’s drawings, and

had similarly approved Eastern Rotorcraft’s execution

of the Sikorsky design. Indeed, the documentary

evidence reflects that the Navy was aware of an

alternative design which would have provided for a

“dual” mechanical cargo release on the co-pilot’s side of

the cockpit, but expressly rejected it.

The BUNO 143941 was retired from Navy service in

1970 and sold to the Uruguayan govemment in 1971. By

1975, 830 Sikorsky helicopters were in the air around

the world and, according to Mr. Jacobson’s researches,

not one of them had occasioned any report or complaint

regarding “any incident or accident caused by the

failure of any external cargo load from any helicopter.”

18a

II. DISCUSSION:

A. Defendants’ Motion or Leave to Amend their

Answer:

In Motion #35, defendants seek an order granting them

leave to serve and file a Second Amended Answer

adding two new “federal government contractor” anc

“contract specification” defenses, and granting them

summary judgment dismissing plaintiffs’ design defect,

manufacturing defect and failure to warn claims.

Plaintiffs have “cross-moved” to deny defendants’

application, and for an order dismissing all of

defendants’ “military contractor defenses.”

Defendants originally moved in 1992 to add as an eighth ©

affirmative defense a claim that plaintiffs’ action was

barred by “the government contractor defense.” In its

Order dated March 24, 1992, the Court granted

defendants’ motion- although it instructed them to

more specifically elaborate the new defense in their

Amended answer, in light of the fact that plaintiffs’

current theory of liability was that “the lifting

mechanism with which the helicopters were equipped

was [somehow] defective.” Accordingly, the eighth

Affirmative Defense in defendants’ Amended

Complaint, served on September 15, 1992, recited that

the BUNO 143941 that Sikorsky had delivered to the

U.S. Navy on December 9, 1957 conformed in all

respects to the Navy’s specifications, and was certified

to be in compliance by the government official who had

accepted delivery of the aircraft. Affirmative Defense

#8 went on to allege that at no time subsequent to

delivery did Sikorsky make any modifications to the

aircraft; that at no time was it aware of any dangers

19a

attending its use that were unknown to the U.S. Navy;

and that plaintiffs’ lawsuits were barred in

consequence.

In proposed Affirmative Defense #9, defendants

underscore that they are similarly not liable for the

U.S. Navy’s 19641966 conversion of the BUNO from a

non-cargo-carrying SH-34J helicopter into a cargo-

carrying UH-341 model, because the conversion was

accomplished by the Navy in accordance with

government specifications. Moreover, in Proposed

Affirmative Defense #10, defendants contend that to

the extent that the original design and subsequent

conversion were accomplished using Sikorsky drawings

and/or equipment, Sikorsky is without liability because

all such “drawings and/or equipment are [similarly]

covered by the federal government contractor defense

and the contract specification defense.”

It is well established that “{a] party may amend his

pleading ... at any time by leave of court ... Leave shall

be freely given upon such terms as may be just ....”

CPLR 3025. While “lateness” can pose an impediment

to amendment, to defeat amendment the “lateness”

must cause “significant prejudice” to the opposing

party. See Abdelnabi v. New York City Transit

Authority, 273 A.D.2d 114 (1st Dept. 2000); Prote

Contracting Co.. Inc. v. Board of Education of the City

of New York, 249 A.D.2d 178 (1st Dept. 1998).

Plaintiffs complain of the passage of more than 30 years

since the happening of the within accident. However,

the Court notes that the majority of the delays in the

instant litigation are attributable to plaintiffs’ counsel’s

tactics. For example, it was not until 1998 that plaintiffs

20a

began to narrow their theory of the case to “something

wrong with the cargo release system,” with the result

that defendants were perforce delayed in articulating

the details of their defense. In addition, the basic

general “federal government contractor” defense was

interposed in 1992, so that plaintiffs have been aware of

the theory for ten years. The amendments proposed

here merely amplify this original “contract specification

defense,” extending to the helicopter’s subsequent

modification the basic principle that when the

government or a private person retains control over a

product’s final design and manufacture, then the

contractor is not responsible to third parties for the

purchaser’s choices - unless the plans and specifications

are so apparently defective that a contractor of

ordinary prudence would be put on notice that they

were likely to cause injury. See, e.g., Boyle v. United

Technologies Corp., 487 U.S. 500 (1988).

Since plaintiffs have not demonstrated how they are

prejudiced or surprised by the proposed amendments,

defendants’ motion is granted to the extent that their

answer is deemed to interpose Affirmative Defenses #9

and #10, nunc pro tunc.

Also granted is defendants’ application to correct

paragraph 2 of their answer. As is apparent from

documentation served upon the plaintiffs in 1998, the

BUNO 143941 that defendants delivered to the U.S.

Navy on December 9, 1957 was a model HSS-1, not an

H-34.

B. Defendants’ Motion for Summary Judgment.

1) Threshold issues:

2la

Plaintiffs protest that defendants’ summary judgment

motion should be denied because it was served more

than 120 days after they filed their (third) Note of Issue

on February 16, 2000. CPLR 3212(a).

As a threshold matter, the 120-day limit was enacted to

discourage “the practice of ‘eleventh hour’ summary

judgment motions” made on the eve of trial. Gonzalez

v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 128-129 (2000);

Cibener v. City of New York, 268 A.D.2d 334 (1st Dept.

2000). Here, a trial is not imminent, as “discovery” has

been continuing notwithstanding the filing of a Note of

Issue. See Gonzalez v. Mag Leasing Corp., supra

Accordingly, the policy that prompted the enactment of

the 120-day time limitation is not at issue.

Moreover, the Court has authority to permit a party to

serve a motion for summary judgment more than 120

days after the filing of a Note of Issue when “good

cause” is shown for tardiness in bringing the motion.

See, Luciano v. Apple Maintenance Services Inc.,

289 A.D.2d 90 (1st Dept. 2001); CPLR 3212 (a). The

court’s discretion in determining adequate cause is

broad, and it may extend the time period to permit a

belated but meritorious motion in the interest of

judicial economy where the opposing party has not

manifested any prejudice. McKay v. Ciani, 280 A.D.2d

808, 809 (8rd Dept. 2001), leave denied 96 N.Y.2d 713

(2001). As has been repeatedly emphasized, a motion for

summary judgment should not be denied on technical

grounds without regard to the merits of the application.

See Milne v. Cheema, 270 A.D.2d 165 (1” Dept. 2000).

As will be discussed below, defendants’ application is

meritorious, and plaintiffs have failed to present any

evidence raising a triable issue of fact as to their

22a

entitlement to judgment as a matter of law. Furthier,

plaintiffs have not indicated how they are prejudiced by

the delay. Accordingly, the Court rules, in an exercis*

of its discretion, that the instant summary judgmest

motion is not “too late” even though served more that.

120 days after plaintiffs’ filing of a Note of Issue.

Nor is defendants’ motion “premature” because of

“incomplete discovery” - _ plaintiffs’ alternative

argument. The Court notes that according to Justice

Schoenfeld’s Order of January 11, 2001, all discovery

was required to be concluded by March 9, 2001. The

record currently before the Court is now complete with

regard to: (a) the details of BUNO 143941’s design, pans

and equipment when Sikorsky Aircraft delivered it to

the U.S. Navy in 1957 as an HSS-1; (b) the subsequent

U.S. Navy operational and modification history of

BUNO 143941; and (c) the origin, character, design and

components of the exterior cargo carrying system and

hook installed in the subject aircraft in 1964-1966.

Plaintiffs, in contrast, have failed to adhere to Justice

Schoenfeld’s discovery schedule, have failed to adduce

any cognizable evidence supporting their design defect,

manufacturing defect or failure to warn claims, and

have failed even to identify what outstanding

“discovery” would, at this late date, aid them in

refuting defendants’ case.

Additionally, defendants are not barred from moving

for summary judgment on the ground that they have

made a prior unsuccessful motion for this relief.

Voluminous materials have been submitted on the

instant motion which satisfactorily resolve a number of

factual questions that remained unsettled at the time of

defendants’ prior application. See Sansol Indus., Ince. v.

a ac

23a

345 East 56th Street Owners, Inc.,276 A.D.2d 370 (1”

Dept. 2000); Freeze Right Refrigeration and Air

Conditioning Services, Inc, v. City of New York, 101

A.D.2d 175 (1st Dept. 1984). For example, when it

affirmed the denial of defendants’ prior motion. for

summary judgment in June of 2000, the First

Department noted that “disclosure on the issues of

design[, installation] and manufacture [of the

helicopter’s external cargo carrying system] is

incomplete” Stajano v. United Technologies Corp. of

New York, 273 A.Md 162 (1st Dept. 2000). The record is

now replete with evidence as to how the accident

helicopter and its external cargo carrier were designed,

manufactured and_ installed. Finally, the instant

summary judgment application is based on a legal

theory (“contract specification defense”) different from

the one advanced on the prior summary judgment

motion (“causation”). See Santini v. Alexander Grant,

Inc., 272 AD.2d 271 (1st Dept. 2000).

2) Substantive issues:

In Boyle v. United Technologies Corp., supra, the U.S.

Supreme Court held that a court could not impose tort

liability on a U.S. government contractor for design

defects in military equipment pursuant to state law

where (1) the United States had approved reasonably

precise specifications for the equipment; (2) the

equipment conformed to those specifications; and (3)

the contractor warned the United States about the

dangers in the use of the equipment that were known to

the supplier but not to the United States. The

“government contractor immunity” defense is derived

from the government’s immunity from suit where the

performance of a discretionary function is at issue.

24a

Boyle, supra at 511. The selection of an appropriate

design for military equipment for use by the Armed

Forces has been identified as a quintessentially

discretionary function.

Boyle Prong #1: “Reasonably precise specifications

approved by the government” (plaintiffs’ “design

defect” theory):

The government need not itself have prepared the

challenged equipment’s specifications to be considered

to have approved them. See Trevino v. General

Dynamics, 865 F.2d 1474, 1480 (5th Cir. 1989), cert.

denied 493 U.S. 935 (1989) (“substantive review” of

technology by government sufficient to trigger

defense). In this case, however, it is clear from

defendants’ submissions -- and, indeed, it is equally

clear from plaintiffs’ submissions -- that the U.S. Navy

approved reasonably precise specifications for the

original BUNO 143941 helicopter that it accepted in

1957, and that it was the U.S. Navy which decided upon

the design of the external cargo sling and hook

assembly that was installed in 1964-1966.

That the government did not merely “review,” but

rather actively participated in the original design and

construction of the aircraft as a whole is evidenced by

the existence of elaborate Navy Detail Specification

manuals that the contractor was obliged to follow in

creating its series of submarine-tracking helicopters

during the 1950’s. Government participation in the

design phase of the aircraft’s engineering also is

apparent from the active, on-site involvement of

engineers like Leo Miller of the Navy’s Bureau of Naval

Weapons Office during the early years of the

25a

helicopter’s development. See In Re Air Disaster a

Ramstein Air Base Germany on August 29, 19 , 81 F.3d

570 (5th Cir. 1996), cert. denied 519 U.S. 1028 (1996).

Defendants have thus demonstrated that this is not

merely a case where the U.S. government simply and

without more “rubber stamped” a drawing submitted to

it by the contractor. Cf. Snell v. Bell Helicopter Inc.,

107 F.3d 744 (9th Cir. 1997); Trevino v. General

Dynamics, supra, cert.denied 493 U.S. (1989).

Plaintiffs’ counsel’s objection that the basic design was

Sikorsky’s, and that components of the helicopter still

bear Sikorsky decals or “proprietary certificates,”

overlooks the fact that military hardware does not

suddenly spring into being from initial design and

procurement specifications, but evolves through

drawings, blueprints and mockups agreed upon by the

parties. The ultimate design of the product is

determined not only by the original procurement and

contract specifications, but also by specific quantitative

engineering analysis developed during the actual

production process. *** The N avy reserved the right to

reject drawings and to require revisions and

modifications. Tbese working drawings, and not simply

the general qualitative specifications from the

procurement stage, comprise ‘the reasonably precise

specifications’ contemplated by Boyle...

Kleeman v. McDonnell Douglas Corp., 890 F.2d 698 (4th

Cir. 1.989). In other words, a design may have both

started out and ended up with a “Sikorsky” proprietary

designation, but may have undergone numerous

modifications dictated by N avy engineers along the

way.

26a

The Boyle Court expressly rejected another, related

_theory relied ca by plaintiffs, namely, that liability

“might attach depending on how much of a design was

ultimately traceable to the contractor versus how much

was dictated by the government. Id. at 513. Rather,

according to Boyle, a contractor will be completely

immunized in all instances where the government

actually participated in discretionary design decisions

affecting the choice of technology either by designing

the product itself, or by approving the specifications

prepared by the contractor. See also Harduvel v.

General Dynamics Corp., 878 F.2d 1311, 1315 (11th Cir.

1989), cert. denied 494 U.S. 1030 (1990; cf. Shaw v.

Gruman Aerospace Corp., 778 F.2d 736 (11th Cir. 1985),

cert. denied 487 U.S. 1233 (1988), overruled by Boyle,

supra.

In an alternative argument, plaintiffs’ counsel devotes

many pages of his attorney’s affirmation in support of

his clients’ “cross-motion” to an exposition of the

theory, apparently of his own devising, that the BUNO

143941 is “descended” from an original “civilian’ S-58

helicopter dating from 1952, with the result that the

“government contractor” defense is inapplicable. Aside

from the fact that there is no expert affirmation

supporting this contention, it appears from, inter alia,

the “helicopter genealogy” that counsel appends to his

“cross-motion” papers (the authenticity of which is

unclear) that “S-58” was originally the generic

designation of a whole family of (mostly military)

helicopters, including the HSS-l. The “genealogy” :

reflects that a specific cargo-carrying “S-58,” which

might or might not be a civilian aircraft, was a cousin

and not a direct progenitor of the XHSS-1. The XHSS-1

was the father or grandfather of the HSS-1 at issue

27a

here. See Plaintiffs’ Exhibit 11. It is worthy of note that

nowhere in the Report of plaintiffs’ engineering expert,

Dr. Waldron, is such a theory supported. Instead, Dr.

Waldron expressly refers to the subject BUNO 143941

throughout his discussion of it as a “military

helicopter.” Indeed, Dr. Waldron relates on page 3 of

his November 16, 2001 “Report” that

U.S. Federal Aviation Administration (FAA)

documents verify that the models HSS-1 and UH-34J

are the same basic helicopter. Surplus military

helicopters such as the HSS-I can be certified by the

FAA and enter the commercial market. The FAA

Helicopter Specification No. 1H11 ... includes a list of

military models which are eligible for certification as a

civil model. Both the HSS-1 (original delivery

configuration of BUNO 143941) and the UH-34J (final

‘modified’ configuration) are eligible to be certified as

the same civil. model, i.e., the S-58B.

In any event, even if it were true that the subject

military helicopter had evolved from an earlier civilian

prototype, this would not alter the fact that, after years

of engineering “give and take” with the Navy,

Sikorsky’s final product incorporated Navy

specifications.

Accordingly, it is clear from all of the evidence

summarized above that defendants have satisfied prong

#1 of the Boyle test, in that they have demonstrated

that the government promulgated “reasonably precise

specifications” for the design of the subject aircraft as

well as for the later-installed external cargo harness

and hook, both by actively engaging in the development

process and in “substantively reviewing” the finished

product.

Boyle prong #2: “The equipment conformed to the

specifications” plan manufacturing defect” theory):

As was held in Kerstetter, supra, a plaintiff claiming

injury due to a product’s nonconformance with a

government specification must allege more than that

the ultimate design feature does not achieve its

intended goal. The complained-of “manufacturing

defect” must exist independently of the design itself,

and must result from a deviation from the required

military specifications. Extensive government

involvement in the design, review, development and

testing of a product, as well as extensive acceptance

and use of the product following production, is evidence

that the product line generally conformed with the

government-approved specifications. See In Re Air

Disaster at Ramstein Air Base. Germany, on August

29. 1990, supra.

The Navy’s issuance to Sikorsky of its DD 250 form

officially accepting the original aircraft on December 9,

1957 constitutes evidence that the BUNO 14291

conformed to the government’s specifications. See

Harduvel v. General Dynamics Com, supra; Hendrix v.

Bell Helicopter Textron, Inc., 634 F.Supp. 1551 (N.D.

Tex. 1986) (issuance by government of DD250

acceptance “conclusively established” that helicopter

conformed to contract specifications). Moreover, the

fact that the U.S. government operated HSS-1 aircraft,

as well as HUS-1 and UH- 34J equipment -- all of which

were essentially identical to the BUNO 143941 at issue

here -- for more than a decade before the happening of

this accident serves to establish, without more, that the

29a

Sikorsky equipment conformed to specifications, and

that the government was as aware of any difficulties

with the aircraft as Sikorsky was. See Smith v. Xerox

Corp., 866 F.2d 135 (5th Cir. 1989) (government’s

acceptance and extended use vf product establishes

product’s conformity with government specifications).

Finally, as indicated, in 1964-1966 U.S. Navy engineers

selected the external cargo sling assembly design for

the: subject BUNO 143941, installed it themselves, and

operated the modified aircraft in the field for many

years before the happening of this accident. The

defendants therefore have satisfied the second prong of

the Boyle test, in that all of the evidence in the record

supports the conclusion that the helicopter, as modified,

conformed to government specifications.

In a case like this one, where a “federal government

contract” defense is legitimately raised, Prong #2 of the

Boyle inquiry replaces conventional State. law product

liability analysis usually applied to “manufacturing

defect” claims. However, the reasoning is analogous.

Indeed, even if State law were to be applied, plaintiffs

have failed to articulate any facts or submit any

evidence tending to prove that BUNO 143941 suffered

from any manufacturing defects attributable to

defendants. In other words, there has been no proof

that Sikorsky failed to manufacture its helicopter in

conformity with its approved design, or that its

subsequentlyinstalled external cargo components were

irregular -- in the absence of which there can be no

claim of a manufacturing defect, even under State law.

See Lombard v. Centrico, Inc., 161 A.D.2d 1071 (3rd

Dept. 1990); Shelden v. Hample Equip., Co., 89 A.D.2d

766 (3rd Dept. 1982), aff'd 59 N.Y.2d 618 (1983) (“since

there was no direct proof of any defect ia the [appliance

30a

that injured plaintiff], plaintiff was required to exclude

all causes of the. accident not attributable to

defendants”). A manufacturing defect cannot be

inferred where the evidence is equally consistent with

nonliability as with liability. Sheldon, supra.

Boyle prong #3; “Contractors duty to warn

government about dangers not known to the

government (plaintiffs’ “failure to warn” theory):

As Boyle makes clear, a military contractor is obliged to

warn only the U.S. government about those equipment

dangers that are known to the contractor but not to the

- government. See Kerstetter v. Pacific Scientific Co.,

210 F.3d 431 (5th Cir., 2000), cert. denied 531 U.S. 919

(2000); Tate v. Boeing Helicopters, 140 F.3d 654 (6th

Cir. 1998) (“Tate II”); Tate v. Boeing Helicopters, 55

F.3d 1150 (6th Cir. 1995) (“Tate I”); Trevino v. General

Dynamics Corp., supra. Such a contractor has no

obligation to “warn” remote, third-party users.

In addition, a contractor can satisfy prong #3 of the

Boyle test if it shows that it had no “actual” knowledge

of the alleged design defect that purportedly caused an

accident. That is, a contractor is immunized from state

tort liability even in cases where it did not warn of a

latent defect that neither it nor the government

considered at all during the design and manufacturing

process. Kerstetter v. Pacific Scientific Co., supra.

Here, defendants have produced uncontradicted

evidence that Sikorsky had no record of any complaints

about the cargo-releasing mechanism at issue, and so

had no knowledge of any peril about which it should

have alerted the U.S. Navy.

3la

Plaintiffs argue that defendants fail to satisfy prong #3

of the Boyle test in that Sikorsky knew or had reason to

know that the failure to incorporate a redundant

mechanical cargo release at the co-pilot’s foot would

prove dangerous when the crew needed to jettison

external cargo during an emergency, when the pilot

would foreseeably be preoccupied with more pressing

matters. It is plaintiffs’ contention that the omission of

this second foot pedal constitutes a “design defect,” and

that Sikorsky’s failure to bring it to the U.S. Navy’s

attention amounts to concealment of a danger known to

the supplier but not to the United States. However, as

related above, when the Navy undertook to install an

external cargo sling assembly on the BUNO 143941 in

1964-1966, it expressly rejected a design that would

have included a co-pilot’s-side foot-pedal cargo-release.

Had the absence of this co-pilot’s side foot pedal posed

an actual danger, it is reasonable to assume that the

Navy would have become aware of it during the several

years that it used the modified helicopter before

retiring it. See In Re Air Disaster at Ramstein Air

Base. Germany, on August 29. 1990, supra; Zinck v. ITT

Corp., 690 F.Supp. 1331 (S.D.N.Y. 1988). Plaintiffs have

accordingly failed to show that the helicopter or its

cargo-releasing mechanism suffered from any “actual”

problems that were known to the manufacturer but not

to the United States.

Conclusion:

Defendants are entitled to dismissal of all of plaintiffs’

design defect claims, since they have demonstrated

without serious opposition that they manufactured and

delivered a product that was designed in accordance

with “reasonably precise” government specifications.

32a

They are also entitled to dismissal of plaintiffs’

“manufacturing defect” claims, because the U.S. Navy

certified that the product met with its requirements

upon accepting it, and the Navy thereafter modified the

helicopter in accordance with its own plans and designs.

Finally, defendants have demonstrated their

entitlement to dismissal of plaintiffs’ “failure to :varn”

claims, by showing that the contractor did not fail to

alert the United States about dangers in the design

and/or use of the equipment that were known to it but

not to the United States. See Beckles v. General

Electric Co., 248 A.D.2d 575 (2nd Dept. 1998), leave

denied 92 N.Y.2d 805 (1998). fn8

Accordingly, it is

ORDERED that that branch of defendants’ motion

which seeks leave to amend their answers herein is

granted, and the amended answers in the proposed

form annexed to the moving papers shall be deemed

served nunc pro vunc upon service of a copy of this

order with notice of entry; and it is further

ORDERED that that branch of defendants’ motion

which seeks summary judgment on the basis of their

government contractor defenses is granted, and the

complaints are dismissed in their entirety, with costs

and disbursements to defendants as taxed by the Clerk

of the Court upon submission of an appropriate bill of

costs; and it is further

ORDERED that all other motions and cross-motions

pending before the Court in these actions are denied as

academic fn9; and it is further

33a

ORDERED that the Clerk is directed to enter

judgment accordingly.

Dated: October 8, 2002

New York, New York

SHIRLEY WERNER KORNREICH

Footnotes

fnl Motion sequence numbers 28, 29, 30, 32 and 33 are

not addressed herein. Those motions are still pending

before Justice Martin Schoenfeld, the Judge previously

assigned to these cases.

fn2 By order dated August 20, 1997, the following

actions were consolidated: 7469/78 (Alberto Lopez);

7473/78 (Miguel Lopez); 3052/80 (Stajano); 3051/80

(Tochodjuklian); and 3595/80 (Aparicio).

fn3 The early procedural history of these cases can be

gleaned from Cappellini v. United Technology of New.

York, 79 A.D.2d 593 (ist Dept. 1980) (conditionally

dismissing actions and allowing them to be instituted in

Uruguay or Connecticut) and Cesa. v. United

Technology of of New York, 148 Misc.2d 918 (Sup. Ct.,

N.Y. County 1990), aff'd 173 A.D.2d 394 (1st Dept.1991)

(reinstating the actions in New York).

fn4 The two helicopters have numerous model and

serial numbers, based on who is doing the designating.

Both ae considered Model S-58 by civilian authorities;

H-34A by the United States Army; H-34 by the U‘S.

Air Force; HSS-1 by the U.S. Navy; and HUS-1 by the

U.S. Marines. One has, at a minimum, serial numbers

34a

143934 and 58698, while the other has, at a minimum,

serial numbers 143941 and 58722. The Uruguayan Navy

apparently designated the two craft as A-061 and A-

062, respectively. The evolution of the helicopter design

at issue here will be discussed in greater detail later in

this Decision.

fn5 Plaintiffs’ counsel volunteers in an Affirmation

dated May 11, 1999 that these “belts” created a species

of conventional harness for transporting jeeps over

water, which counsel calls a “four-legged type of sling”

or a “four-legged bridle.” According to counsel, one belt

would have been secured to each of the jeep’s four

quarters, and all four belts would have met for

fastening at the “external cargo hook” protruding from

the belly of the aircraft. However, aside from plaintiffs’

counsel’s say-so, and in light of the crew’s difficulties in

fastening the jeep to the helicopter, there is nothing in

the record to support Mr. Heller’s conclusion that the

operation was a routine securing of a “four-legged

bridle” to an “external cargo hook.”

fn6 The record reflects that in March-May 2001, several

of the plaintiffs traveled to New York to be deposed

and to undergo independent physical/psychiatric

examinations. However, because of the disruptive

behavior of plaintiffs’ counsel, Mr. Heller, during these

examinations, Justice Schoenfeld appointed Mr. Leslie

Lowenstein as a Special Referee to supervise the

proceedings. Mr. Lowenstein subsequently submitted a

report in which he castigated Mr. Heller for the

deliberate campaign of disruption that he had mounted

during the examinations of his clients. Mr. Lowenstein

related that Mr. Heller relentlessly caviled at

questions, interrupted, objected, argued, and threw

35a

temper tantrums, thereby effectively destroying the

examiners’ ability to conduct their inquiries. In the end,

Mr. Lowenstein recommended that Mr. Heller be held

in contempt and be sanctioned for, inter alia,

“shred[ding] the very fabric of the legal system in

which he practices.”

fn7 Aside from Mr. Nokes’ conjecture in an Affidavit

dated November 21, 2001 that “a jeep” usually weighs

“approximately 2,200-2,300 pounds,” there is no

admissible evidence in the record of the actual weight

of the jeep involved in the within accident. The jeep and

both helicopters were completely destroyed in the

accident.

fn8 Parenthetically, it is worthy of note that even

without the government contractor defense, plaintiffs

have no case. Plaintiffs’ entire theory of this case is

based upon the unfounded assumption that when one of

the “belts” securing the jeep to the helicopter snapped

open, the pilot and the co-pilot instinctively resorted to

their electrical releases to no avail, and that the pilot

then stomped on the mechanical release pedal near his

right foot, also without result. On this record, plaintiffs’

theory is pure speculation. There is no evidence that

the pilot or co-pilot ever attempted to release the jeep

and that the “release” systems failed. In fact, there are

any number of possibilities for how this accident

happened. For example, the Uruguayan pilots might

have been poorly trained, might not have known of the

existence of the releases, or might have panicked and

bailed out of the aircraft before trying them. It is

equally possible that the jeep was overweight, or that it

was incorrectly secured to the cargo hook, such that no

amount of pushing on the “releases” would have

36a

jettisoned the vehicle. Perhaps, too, the helicopter had

been poorly maintained during the roughly one year

that it was in the possession of the Uruguayan

government, so that the “release” and other systems

were in disrepair. Finally, even assuming that the

release systems malfunctioned, the plaintiffs do not

explain how or why the co-pilot’s footpedal, had one

existed, would have survived the _ shut-down.

Accordingly, plaintiffs’ theory that a second foot-pedal

near the co-pilot’s seat would somehow have saved the

day, and that its absence constituted an “inherently

dangerous” design defect, is little more than fanciful

conjecture.

The lack of evidence on these critical issues is entirely

attributable to plaintiffs. That is, plaintiffs’ counsel has

over all these years failed to, inter alia, obtain

statements regarding what went on in the cockpit from

the Pilot and the Co-Pilot- both of whom survived the

crash; failed to obtain from them, or indeed from

anybody, a precise descripton of the arrangement of.

switches and dials in the cockpit, which Mr. Heller

conclusorily insists was “confusing” and therefore

“defective”; failed to interview the “ground crew” who

fastened the jeep to the helicopter; failed to provide

evidence of the pilot’s and co-pilot’s training; and failed

to unearth witnesses to the weight of the jeep and the

maintenance of the aircraft.

fn9 The Court has considered but declines to address,

as moot, the remaining arguments raised by plaintiffs

on these motions.

37a

Supreme Court of the State of New York,

Appellate Division,

First Judicial Department

Julio Cesar Wilson Stajano et al.,

Plaintiffs-Respondents-Appellants,

United Technologies Corporation, et al.,

Defendants-Appellants-Respondents.

June 27, 2000

273 A.D.2d 162, 711 N.Y.S.2d 718

Order, Supreme Court, New York County (Martin

Schoenfeld, J.), entered on or about January 7, 2000,

which, in an action for personal injuries allegedly

caused by defects in a helicopter designed and

manufactured by defendants, inter alia, denied the

parties’ respective motions for summary judgment,

unanimously affirmed, without costs.

Defendants’ motion for summary judgment was

properly denied since they failed to come forward with

evidence of causation eliminating the possibility that

the accident was caused by a design or manufacturing

defect in the helicopter’s external cargo carrying

system (see, Winegrad v New York Univ. Medical

Center, 64 N.Y.2d 851, 853). We would also note that

disclosure on the issues of design and manufacture is

incomplete. With respect to plaintiffs, cross motion for

summary judgment, numerous issues of fact remain

unresolved, including, most significantly, whether

38a

defendants designed, manufactured and installed the

allegedly defective cargo carrying system. On the issue

of the applicability of general maritime law, previously

left unresolved by this Court (258 A.D.2d 424), while

plaintiffs have submitted additional competent and

undisputed evidence that the accident began over

water, they still have not established 2 “maritime

nexus” sufficiently to warrant a ruling. Factual issues

continue to exist as to whether the subject helicopter

was designed to perform, and in fact at the time of the

accident was performing, an activity traditionally

performed by waterborne vessels (see, O’Hara v

Bayliner, 89 N.Y.2d 636, 641-644, cert denied 522 U.S.

822). We have considered plaintiffs, other arguments

and find them to be unavailing.

Rosenberger, J.P., Nardelli, Mazzarelli, Wallach,

Lerner, JJ., concur.

39a

Supreme Court of the State of New York,

First Judicial Department

Julio Cesar Wilson Stajano et al.,

Plaintiffs,

United Technologies Corporation of

New York City, et al., Defendants.

January 4, 2000

MARTIN SCHOENFELD, J.::

The motions designated by sequence numbers 23, 24,

and 25 are consolidated and disposed of as follows:

In these consolidated actions plaintiffs Alberto Lopez,

Miguel Lopez, Julio Stajano, Robert Tochodjuklian, and

Teresa Aparicio fnl1 allege that on November 14, 1971,

they were injured when two helicopters fn2

manufactured by the Sikorsky Aircraft division of

defendants United Technologies Corporation of New

York City and United Technnologies Corporation

collided and exploded at a waterside air show in

Pocitos, Montevideo, Uruguay.

Plaintiffs originally commenced their actions for

negligence, breach of warranty, and strict products

liability in 1978 (the Lopez plaintiffs) and 1980 (the

others). After a decade of pretrial procedural

wrangling, Justice Edward Greenfield reinstated the

actions on February 13, 1990. fn3 Innumerable

requests for disclosure and responses thereto have

40a

resulted in at least five court conferences and

significant motion practice. Both sides claim that they

are entitled to much but have been given little.

Motion 23

The Motion. By Motion 23 defendants move, pursuant

to CPLR 3126, to preclude plaintiffs or, alternatively,

pursuant to CPLR 3212, for summary judgment.

Much of the factual background of the cases is not in

dispute. Sikorsky built the helicopters in or about 1957

for the United States Navy. According to plaintiffs, at

the time of delivery the helicopters had all of the

‘“fnternal” equipment of cargo lift mechanisms,

including two cargo release mechanisms: an electric

one, which could be activated by either the pilot or the

co-pilot by pressing a button on their respective “flight

control sticks”; and a mechanical one, that the pilot

could activate by pressing his right foot on a pedal on

the cabin floor. Plaintiffs note that the pilot would have

to remove his right foot from the rudder control pedal

to activate the cargo release pedal, and that the co-pilot

would find it difficult or impossible to activate it.

Plaintiff claims that either at the time of delivery or in

1971, when the Navy overhauled the helicopters at its

Pensacola (Florida) Naval Air Station, an external

cargo hook manufactured by a supplier named Eastern

Rotocraft was installed, and that in either event

Sikorsky personnel supervised the hook installation.

Later in 1971 the United States sold the helicopters,

including the cargo mechanisms, to the Uruguayan

Navy.

Ai Tat ani w

Jabal awe

4la

On the date in question, A-061, commanded by Captain

Waldmar Perdomo, hovered over a jeep parked on or

near a crowded beach, while a “four-legged bridle”,

attached to the four corners of the jeep, was connected

to the helicopter’s cargo hook. The helicopter ascended

and flew out over the ocean, with the jeep horizontal,

whereupon one corner of the bridle loosened, causing

the jeep to tilt forward and the helicopter to destabilize.

The helicopter, nose now tilted somewhat downward,

attempted to return to where the jeep had been

hoisted. However, due to the destabilization and the

weight of the jeep, the helicopter lost altitude, the jeep

hit rocks along the beach, and the helicopter was

dragged towards the ground, where it crashed into A-

062 and exploded, injuring the infant-plaintiff-

spectators. -

Plaintiff has submitted (Opposition Exhibit 11) the

Affidavit of Carlos Tochodjuklian, dated March 2, 1999,

stating, in full, as follows:

On November 14, 1971 I was standing on the beach at

Pocitos, Montevideo, Uruguay viewing the air show

demonstration of a helicopter lifting and carrying a jeep

over the ocean.

While the helicopter was over the ocean, one corner of

the carrying sling came off a front corner of the jeep.

The forward part of the jeep dipped downward so it

was no longer on a level plane.

The helicopter immediately also dipped downward and

flew lower and lower. It appeared to be pulled

downward by the downward angle of the jeep fn4, it

turned shorewards where the other helicopter was

42a

parked near [an] ice cream stand and as it approached

the shore it attempted to land near the other helicopter.

The jeep hanging below the helicopter struck a pile of

rocks supporting the roadway under the parked

helicopter. The lifting helicopter fell on the parked one.

Everything seemed to explode.

The carrying hook connected to the bottom of the lifting

helicopter never opened from the time the helicopter

was over the water until the time the jeep struck the

rocks.

Plaintiffs expert, Robert Nokes, states (Opposition

Exhibit 10) that helicopter flight instructors drum into

pilots that “if anything goes wrong while carrying an

external load,” the pilot should immediately release (in

colorful pilot lingo, “pickle”) the load. Nokes opines

(third unnumbered page) that when the jeep tilted

forward, destabilizing the helicopter, the pilot and co-

pilot would have tried to release the load, and that “[iJt

is logical to assume that the electrical and mechanical

release mechanisms filed on this aircraft” due to “a

manufacturing defect, a design defect [not giving the

co-pilot a mechanical pedal release, or providing a ‘fail-

safe’ automatic release, such as a ‘guillotine’ or ‘shear

pin’ that would sever the load at a certain level of

impact, or by not providing adequate safety warnings]

or both.”

Defendants reply that plaintiff cannot prevail on a

theory of negligent manufacture and/or design of the

cargo release mechanisms absent evidence that the

pilot and/or co-pilot, who have not submitted affidavits

and who may be dead and whose whereabouts

apparently are unknown, attempted to activate them.

43a

Defendants point out that Nokes has not laid a

foundation for knowledge as to the training of

Uruguayan helicopter pilots in general or this

particular pilot and co-pilot in particular.

How »ver, if an automobile crashes, killing the driver,

and subsequent investigation reveals that the brakes

were not working, would a plaintiff have to

demonstrate that the driver stepped on the brake

pedal? Would a plaintiff have to demonstrate what was

taught at the drivers “Driver Education School”?

Defendants’ argument proves too much. While the

matter is not entirely free from doubt, after careful

consideration this Court finds that plaintiffs have

demonstrated entitlement to present their claims to a

jury (at which point the trial judge can always entertain

a motion for a directed verdict).

To grant summary judgment it must clearly appear

that no material issue of fact is presented. This drastic

remedy should not be granted where there is any doubt

as to the existence of such issues, or where the issue is

“arguable”; issue-finding, rather than _ issue-

determination, is the key to the procedure.

Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d

395, 404, 165 NYS2d 498 (1957) (citations omitted).

The alternative request, to preclude, is denied without

prejudice and with the direction that counsel appear for

a compliance (and possible settlement) conference

before the Court’s law clerk, in Room 517, 60 Centre

St., on January 19, 2000, at 10:00 a.m.

The Cross-Motion. Plaintiffs cross-move “for Partial

44a

Summary Judgment on their claim that this case arises

under the general maritime law”; for summary

judgment on _ plaintiffs’ strict products liability,

negligent design and/or manufacture, failure to warn,

and breach of implied warranties of fitness and

merchantability claims; to strike defendants’ answers;

or, alternatively, to preclude defendants from

introducing evidence denying that they designed and/or

installed the helicopter external cargo carrying system

at issue.

According to plaintiffs (Cross-Moving Affidavit of May

22, 1999 at 3-4), citing numerous cases, admiralty

jurisdiction in tort exists when the wrong took place on

(or over) navigable waters and bears a significant

relationship to traditional maritime activity. This latter

criterion depends upon the functions and roles of the

parties; the types of vehicles and instrumentalities

involved; the causation and the type of injury; and

“traditional concepts of admiralty law.” Plaintiffs claim

that the action arises under “general maritime law”

because the United States and Uruguayan Navies

operated the helicopters; the helicopters were built for

“anti-submarine and air-sea rescue” work; the accident

occurred because of a failure to perform the task of

carrying cargo over navigable water; and the accident

began over water, even though it culminated on land.

“The law is well settled that actions involving aircraft

engages in activities traditionally performed by

waterborne vessels fall within admiralty jurisdiction.”

Icelandic Coast Guard v. United Technologies Corp.,

722 F Supp 942 (D Conn 1989).

However, while plaintiffs have marshaled much support

45a

for their argument, the request for a declaration that

general maritime law governs the instant case (which

would entitle plaintiffs to pre-judgment interest) is

denied because of the reasons set forth in the opinion of

Justice Edward Greenfield, dated April 23, 1998, filed

May 1, 1998, which denied this request, and because

that opinion, which reserved a decision on the issue

until after “a full exploration of the facts [i.e., a trial].”,

has been affirmed and therefore is now law of the case.

Plaintiffs’ request for summary judgment on their strict

products liability, negligent design and/or manufacture,

failure to warn, and breach of implied warranties of

fitness and merchantability claims is denied because , as

noted above, at best there are issues of fact. Plaintiffs’

request to strike or preclude is denied without

prejudice and with the same direction set forth above.

Motion 24

By Motion 24 plaintiff moves to compel defendants to

disclose the whereabouts and social security numbers of

five of their former employees, to wit, John Baron,

Carroll Melton, Byron Pickering, Louis Pulver and

Joseph Vetrano, for open commissions for their

depositions, and for sanctions for failure to provide such

information previously. Defendants claim that federal

and state privacy laws prevent the disclosure of such

information. In any event, in his reply affirmation,

plaintiffs’ counsel states (page 2) that “{dJefendants

have accidentally provided what information they have

to plaintiffs.” This information includes addresses for

Melton in Texas and for Pulver in Florida. Pickering

may be deceased. Plaintiff may submit open

commissions for Melton’s and Pulver’s depositions, with

46a

any proper notice to defendants. The request for

sanctions is denied, as the court is not convinced that

defendants’ were wilful in any failure earlier to produce

the information at issue.

Motion 25

By Motion 25 plaintiff seeks to strike defendants’

Notice to Take Deposition of Plaintiffs and Demand for

Physical Examination and to compel defendants to

produce as a deposition witness “a person having

knowledge of the facts” and “compelling defendants to

produce documents pursuant to CPLR 3111.”

Plaintiffs argue that defendants are precluded from

deposing plaintiffs pursuant to CPLR 3130(1) because

defendants have already served interrogatories on

plaintiffs. However, 3130(1) only applies in cases

“predicated solely on a cause of causes of action for

negligence.” Furthermore, even if 3130 applied, this

court would grant leave to depose the five plaintiffs,

who are alleging serious injuries and whose testimony

might be important at trial.

Plaintiffs also argue that they should be deposed “on

open commission, or by written questions,” and that

they should be physically examined in Uruguay “using

a physician of their own choice” because they reside in

Uruguay and are too poor to travel to the United

States, except for shortly before trial. Plaintiffs do

indeed live in Uruguay, and were injured in Uruguay

by Uruguayan aircraft flown by Uruguayan pilots.

Defendants did not sell the helicopters in or to

Uruguay, did not own the helicopters when they were

sold to Uruguay, and have not attempted to avail

LR Seb Mita Sai

a |e

47a

themselves of the Uruguayan justice system (at least

not in this action). In its discretion, this Court finds

that defendants are entitled to depose and physically

examine plaintiffs in New York, by a physician(s) of

defendants’ choosing, and that doing so just before trial

would be impractical and/or result in a greater, rather

than lesser, expenditure of resources. Thus the

requests to strike are denied.

Defendants are hereby ordered to produce a deposition

witness who, in plaintiffs counsel’s words, has

“knowledge of the HSS-1’s design, manufacture,

maintenance, sales, servicing, repair and alteration to

cargo lifting capabilities”, deposition details to be

mutually agreed upon.

Plaintiffs state that defendants should be compelled to

“produce all documents on the accident HSS

helicopters, including their design[,] manufacture,

assembly, testing, sales, repair and outfitting.” Such a

demand is overly-broad, and is denied without

prejudice to submission of a more tailored request.

The note of issue must be filed no later than June 30,

2000.

Footnotes

fl By order dated August 20, 1997, the following

actions were consolidated: 7469/78 (Alberto Lopez);

7473/78 (Miguel Lopez); 3052/80 (Stajano); 3051/S0

(Tochodjuklian); and 3595/80 (Aparicio).

f2 The helicopters have numerous model and serial

numbers, based on who is doing the designating. Both

48a

are considered model S-58 by civilian authorities; H-

34A by the United Staes Army; H-34 by the Air force;

HSS-1 by the Navy; and HUS-1 by the Marines. One

has, at a minimum, serial numbers 143934 and 58698

and the other has, at a minimum, serial numbers 143941

and 58722. The Uruguayan Navy apparently

designated them as A-061 and A-062.

f3 The prior history of this case can be gleaned

from Cappellini v. United Technology of New York, 79

AD2d 593 (1st Dept 1980) (conditionally dismissing

actions and allowing them to be instituted in Uruguay

or Connecticut); Cesar v. United Technology of New

York, 148 Mise 2d 918 (Sup Ct,, NY County 1990)

(reinstating actions in New York because of failure of

condition); aff'd 173 AD2d 394 (1st Dept 1991).

f4 As far as this court understood and remembers

high school physics, the “angle” of the jeep would not,

per se, pull the helicopter down. However the sudden

jerk of the jeep might have pulled the helicopter off of

its more-or-less horizontal plane, causing the helicopter

to descend because the rotor blades would no longer be

revolving parallel to the earth.

he Od tee emt La A

$y AAPL DRANG SEAM AL abhi Las 2h AO he Bed

49a

U.S. NAVAL AIR MINE DEFENSE

DEVELOPMENT UNIT

PANAMA CITY, FLOR™A

26 August 1958

From: Officer in Charge

To: Chief, Bureau of Aeronautics

Subj: HSS-1 Tow configured helicopter; interim report

on evaluation of

1. The Naval Air Mine Defense Development Unit

accepted HSS-1, BuNo 139024 from bailment by

Sikorsky Aircraft Division, United Aircraft

Corporation on 1 July 1958. To date a total of twenty

one (21) evaluation flights, totaling 20.7 flight hours,

have been completed. Below are listed the comments

and recommendations of this Unit based on these

flights:

a. Magnetic and Acoustic Signatures. Both the

magnetic and acoustic signatures of the aircraft have

been measured and found to be insignificant in-so-far-as

possible mine activation is concerned.

b. Aircraft Stability.

(1) COMMENT. Upon receipt of the aircraft the

Sikorsky Aircraft Division recommended that all

towing operations be conducted with the Automatic

Stabilization Equipment (A.S.E.) in-operative. without

the A.S.E. the aircraft is extremely unstable while

towing. Controlling the aircraft requires the undivided

attention of the pilot giving him little or no time to

50a

concentrate on the actual tow mission. After two such

flights it was decided to use the A.S.E. to determine

first, if it would work in a tow attitude and second, if it

would help stabilize the aircraft. To date the A.S.E. has

worked satisfactorily up to and including 22 degrees of

fuselage inclination.

(2) RECOMMENDATION. That the HSS-1 be

declared unsuitable as a tow helicopter if the A.S.E.

cannot be utilized up to 45 degrees of fuselage

inclination.

C. Towing Ability

(1) COMMENT. To date tow operations by

NAMDDU have been conducted in winds of less than

20 knots. With the generally hot, low wind days

prevailing in this area at this time of year, it has been

found that when using normal rated power a tow

tension of between 2500 and 3000 pounds is the

maximum that can be obtained. These low tensions are

considered to be borderline acceptable in-so-far-as tow

operations are concerned.

(2) RECOMMENDATION. That should the HSS-1

be accepted as a tow helicopter, all commands must be

made aware of this marginal ability at low wind

velocities.

d. Hook and Hook Release Mechanism.

(1) COMMENT. The throat angle of the present

hook is too small to guarantee sucessful engagement of

the tow wire under rough water conditions. The

manual hook release system has never worked under

DME unk Ghar vdiesin easel:

5la

any condition of tension. When in the down position the

tow boom does not have any dampening device to

prevent excessive movement. The electrical hook

release system has failed twice.

(2) RECOMMENDATION.

(a) That the hook throat angle be increased.

(b) That the manual hook release system be

completely redesigned to guarantee positive hook

release under all tensions.

to prevent excessive fore and aft tow boom travel.

(d) That an explosive bolt attaching device be

installed at the tow boom attachment point to assure

release of the tow should the manual and electrical

release systems fail.

e. Visibility in Attitudes.

(1) COMMENT. Of prime important to the tow

pilot is downward and rearward visibility while towing

and during tow wire engagement. The presently

installed mirrors do not enable the pilot to see the tow

boom during engagement of the tow wire. The co-pilot

ean see the hook only if he leans far out of the cockpit.

While towing it is necessary for the pilot to crab the

aircraft and put the tow boom off center if he is to see

the hook and the tow.

(2) RECOMMENDATION. That the mirror system

be completely redesigned to accomplish the following:

52a

(a) Easy adjustment while in flight

(b) Downward visibility during tow wire pick-up.

Tail Rotor Drive System.

(1) CQMMENT. While still under bailment the

contractor observed that higher tail rotor horsepower

conditions were being encountered while towing than

were encountered under normal flight operations. The

original estimate was that the tail rotor and

intermediate transmissions would have to be changed

after eight hours of flight time utilizing over 150 tail

rotor horsepower. The contractor changed the tail

rotor transmission and returned it to the factory for a

destruction test. Upon completion of this test the hour

limits on the tail rotor transmission system were set at

15 sours between 150 and 210 horsepower, 5 hours

between 210 and 250 horsepower, 1% hours between

250 and 310 horsepower and % hour above 310

horsepower. An elapsed time clock system was

installed to record the tail rotor horsepower used above

150 horsepower and a multiplication factor was supplied

to limit the life of the system to a total of 15 hours of

operation above 150 tail rotor horsepower. On 23 July

1958 the tail rotor gear box and rubber coupling failed

during a tow demonstration in the Gulf of Mexico. The

Tail rotor was installed on 14 June 1958 and had 23

hours of which 9 hours was tow time. The rubber

coupling had 369 hours of which 17 hours was tow time.

The pylon disconnect coupling was changed due to a

excessive amount of play on 16 August 1958 with 378

hours of which 17 hours was tow time.

53a

(2) RECOMMENDATION. That the entire tail

rotor drive system be redesigned to accommodate these

high tail rotor horsepower requirements before the

Navy accepts the HSS-1 as a tow helicopter for fleet

use.

g. Seats and Pilot Comfort.

(1) COMMENT. While towing with fuselage angles

of inclination above 20 degrees it is considered

manadatory that the pilots seats be adjustable to

prevent him from “hanging on his straps”. The present

seat design is such that it can be adjusted to only three

(3) positions and not easily, if at all, while in flight. In

an attempt to make the seat adjustable the contractor

has made only the bucket adjustable for tow attitudes

and as a result it tends to compress the normal

perpendicular seating attitude to that of a vee resulting

in severe leg cramps. The co-pilot’s feet must be brace

on the rear of the cockpit floor under his seat which is

both uncomfortable and also highly unsatisfactory

should he be required to assist the pilot in an

emergency. .

(2) RECOMMENDATION.

(a) That the seats be redesigned to accomplish:

1. Ease of adjustment.

2. Better adjustment range.

(b) That foot braces be installed on the cockpit floor

for both the pilot and co-pilot.

W.R. MC INTYRE

Copy to:

BAR, E. HARTFORD

USNMDL

;

55a

[Stamp of Military Court — illegible]

Montevideo, 5 April 1972

The hearing of today’s date is signaled at fifteen

hundred hours to permit depositions to be made by

Commander Waldemar’ Perdomo, Lieutenant

Commander Amilser Gonzalez, S/O de Carga

[Loadmaster] Ramon M. Lemos, Cho. La. Joaquin N.

Perez and Mro. La. Flores Corres.

Colonel [sgd. Silva Ledesme]

Tte. Lo. (PAM) [sgd. William Cabrera]

In Montevideo on the fifth day of the month of April,

nineteen hundred and seventy two, at fifteen thirty

hours, there being in Court Military Examining

Magistrate of the 3rd Session, Colonel Federico Silva

Ledesme, assisted by the undersigned Secretary, there

appeared the person named first who, having promised

to tell the truth and having been advised of the

provisions of Art. 180 of th C.P.O, the Judge moved to

the questioning of the im as follows:

Q. - Asked for his name, nationality, marital status, age,

profession and address.

A. - Waldemar Ramon Perdomo Beltran, Uruguayan,

divorced, 43 years, Naval Officer, Medanos S/N [..

Illegible..] Eduardo Perez, el Pinar.

Q. - If he knew or believed he knew why he ad been

called to make a deposition.

56a

A. - Yes, I think it is because of the accident with the

helicopters.

Q. - Tell us, in detail, what hay pened.

A. - On 14 November 1971, at approximately 17:30

hours he was [...Jat? [illegible| laya Pocitos in order to

perform a demonstration of the transport of a load as

the pilot of the helicopter [... illegible ...] the time

specified he took off, transporting a jeep, and

immediately after take-off (start of the flight) he

experienced a marked loss of power and initiated the

action to abort the take-off. An immediate attempt was

made to release the load which could not be achieved

for reasons he does not know. During this procedure,

the helicopter continued to lose height slewly and

turned towards the right, ending its flight close to

helicopter A-061, which was in motion close to the take-

off point of the undersigned. That although the landing

was relatively smooth, the rotor blades of the two

helicopters collided, stated a fire in helicopter A-061.

That immediately after landing, the undersigned

carried out the procedure to switch off the ignition, etc.,

in accordance with the procedures in force, abandoning

the aircraft and subsequently checking the condition of

his crew and also of the crew of the other helicopter,

checking that their members were safe. That he

subsequently helped civilian personnel in carrying

somebody who had been injured to a vehicle but that he

could not continue with this action as he felt mentally

unable to do so. He remembers that some time later he

was put into a Naval vehicle and taken to Estacién

Trouville [Trouville Station], which comes under the

Prefectura General Maritima.

57a

Q. - To what did he attribute the significant loss of

power stated.

A. - That he does not know to what to attribute it, but

that it was a sudden reduction of 400 - 450 rotations.

Q. - Whether the helicopter was in good flying order.

A. - Yes. That the routine tests had been carried out

prior to take-off from Laguna del Sauce as also prior to

take-off for the maneuver which he was about to

perform.

Q. - Whether he was qualified on this type of

equipment.

A. - Yes. That he had received training in the United

States.

Q. - Whether he had previously carried out this type of

maneuver of lifting a load.

A. - Yes. In training and as a demonstration.

Q. - If he knew who had prepared the safety device /

arrangement and of what it consisted.

A. - That he does not know. That on arrival he saw an

ambulance in place in the area and that when the

emergency occurred his major concern was for the

public as he could see people on the flight path who he

had not seen at first.

Q. - Did he have anything else to add, take away or

amend to what he had said.

58a

A.- No. That he had nothing to add or to take away.

Q. - The reason for his statements.

A. - He had been summoned to make a statement and

that this was the truth.

At this point the Judge ordered the deposition to be

terminated; it was read by the person making the

deposition who ratified it and signed it after the Judge

and before me to which I certify .... Let it be recorded.

[Signatures ]

bi ate TS Moka KR

a ssn SO A NG nD ES SSE A ERRORS EC

cx TERR CAREC

Hook

EXPLOSIVE »

CesT $ 50,20

Fauate BY PRESSING Dow

A Sy Va

aA HARD

EMERGEMCY

ME CHAM ICAL

PRoPosEDd

Co-Piét REEME

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.