Opinion
September 18, 1995
Appeal from the Supreme Court, Orange County (Silverman, J.).
Ordered that the appeal of Tarkett, Inc., is dismissed as withdrawn; and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof which denied the branch of GAF Corporation's motion which was for summary judgment dismissing the plaintiffs' first cause of action based upon strict products liability, and substituting therefor a provision granting that branch of GAF Corporation's motion; as so modified, the order is affirmed insofar as appealed from and reviewed; and it is further,
Ordered that the defendant GAF Corporation is awarded one bill of costs.
Contrary to the Supreme Court's conclusion, the evidence demonstrates that neither the defendant GAF Corporation (hereinafter GAF) nor its predecessor in interest, the defendant Ruberoid Company, were anything more than casual sellers of planishing machines such as the one involved in plaintiff's accident, and that neither was engaged in the business of manufacturing or selling such machines. Therefore, GAF cannot be held liable to users of the product in strict products liability (see, Stiles v Batavia Atomic Horseshoes, 81 N.Y.2d 950; Sukljian v Ross Son Co., 69 N.Y.2d 89; Fadale v Allegheny Ludlam Steel Corp., 139 A.D.2d 902; see also, Restatement [Second] of Torts § 402A, comment f). However, we are in agreement with the Supreme Court that an issue of fact has been presented concerning the nature of the alleged defective condition such that GAF Corporation may be liable in negligence for a failure to warn (cf., Sukljian v Ross Son Co., supra; Marte v Hickok Mfg. Co., 159 A.D.2d 316; Ruggiero v Braun Sons, 141 A.D.2d 528). Miller, J.P., O'Brien, Ritter and Goldstein, JJ., concur.