Opinion
Submitted April 28, 1999
June 7, 1999
In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Kings County (Bernstein, J.), dated July 21, 1998, as denied those branches of its motion which were for summary judgment dismissing the plaintiff's causes of action based on the theories of strict products liability, breach of implied warranty, and negligence.
Bruce A. Lawrence, Brooklyn, N.Y. (Loretta McHenry of counsel), for appellant.
Emanuel Bloom, New York, N.Y., for respondent.
GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
There was sufficient circumstantial evidence in the record of a defect in the hydraulic arm of the engine hoist at issue ( see, Caprara v. Chrysler Corp., 52 N.Y.2d 114, 123; McDermott v. City of New York, 50 N.Y.2d 211, 220; Retz v. Alco Equip., 259 A.D.2d 898 [3d Dept., Mar. 11, 1999]), and the evidence also demonstrated that the defendant sold the engine hoist to the plaintiff's employer.
The Supreme Court properly determined that the defendant was not a "casual" seller ( see, Retz v. Alco Equip., supra; cf., Stiles v. Batavia Atomic Horseshoes, 81 N.Y.2d 950; Clute v. Paquin, 219 A.D.2d 783), and that the record contained no evidence demonstrating that the sale of the engine hoist was on an "as is" basis.
The defendant's remaining arguments were not presented to the Supreme Court, Kings County. and, as a result, are not properly raised on appeal.