2 No. 15
   Shauna Alami, &c.,
   Appellant,
   v.
   Volkswagen of America, Inc.,
   Respondent.
     _________________________________________________________________

   2002 NY Int. 18

   February 19, 2002

   This opinion is uncorrected and subject to revision before publication
   in the New York Reports.

   Fred R. Profeta, Jr., for appellant.
   David B. Hamm, for respondent.
   Product Liability Advisory Council; Mothers Against Drunk Driving,
   amici curiæ.
     _________________________________________________________________

   WESLEY, J.:

   In the early morning hours of May 10, 1995 Silhadi Alami was driving
   home alone in his Volkswagen Jetta on the Saw Mill River Parkway in
   Yonkers. Traveling at approximately 35 miles per hour, the Jetta left
   an exit ramp and collided with a steel utility pole. Alami died as a
   result of his injuries -- fractures of the ribs, rupture of the liver
   and massive internal hemorrhaging. At the time of the collision, his
   blood alcohol content exceeded the limits set forth in Vehicle and
   Traffic Law § 1192(2).

   Alami's widow commenced this action against Volkswagen of America,
   Inc. seeking to recover damages on the theory that a defect in the
   vehicle's design enhanced decedent's injuries. Volkswagen moved for
   summary judgment arguing that decedent's intoxication was the sole
   cause of the crash and that no defect or malfunction in the Jetta
   caused or contributed to it. In light of Alami's intoxication at the
   time of the accident, Volkswagen also asserted that plaintiff's claim
   was precluded on public policy grounds. Volkswagen's motion did not
   address whether plaintiff could sustain her claim that the vehicle was
   defective.

   In opposing the motion, plaintiff submitted an affidavit and report
   from an expert who had inspected the vehicle, autopsy report,
   photographs of the scene, police report and crash test results from