Summary
deeming F.O.B. clause irrelevant to whether Section 302 provides jurisdiction
Summary of this case from Fica Frio, Ltd. v. SeinfeldOpinion
February 1, 1993
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the judgment is affirmed, without costs and disbursements.
It is well settled that a motion pursuant to CPLR 4401 to dismiss for failure to establish a prima facie case should be granted if there is no rational process by which a jury could find for a plaintiff and against a defendant upon the evidence presented (see, Gruntz v Deepdale Gen. Hosp., 163 A.D.2d 564; Blum v Fresh Grown Preserve Corp., 292 N.Y. 241, 245). Viewing the plaintiff's evidence as to negligence and strict products liability in a light most favorable to her (see, Wragge v Lizza Asphalt Constr. Co., 17 N.Y.2d 313), we find that there was insufficient evidence from which a reasonable person might conclude that the defendants had either actual or constructive knowledge of the alleged defect or that the alleged defect existed at the time the product was sold. Accordingly, the complaint and all cross claims were properly dismissed. Mangano, P.J., Rosenblatt, Ritter and Santucci, JJ., concur.