In Squitieri v. City of New York, 248 A.D.2d 201 (1st Dept. 1998) the court held that the absence of the product in question prevented the manufacturer from countering the design defect claim with evidence of misuse, alteration or poor maintenance of the product. In Squitieri the product had been purchased and used for almost five years prior to the accident, and the manufacturer was impleaded ten years later.