Opinion
June 23, 1986
Appeal from the Supreme Court, Queens County (Graci, J.).
Appeal from the order dismissed (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Judgment reversed, on the law, order vacated, and motion denied.
The plaintiff is awarded one bill of costs.
Upon review of the motion papers submitted by both parties, we find that there are triable issues concerning the adequacy of the warning issued by the respondent for its drug Depoprovera, including whether it was proper not to report that there were incidents of cancer in humans associated with the use of that drug, and whether the respondent undercut its warnings and nullified or eroded their adequacy (see, McFadden v. Haritatos, 86 A.D.2d 761, 762-763; Baker v. St. Agnes Hosp., 70 A.D.2d 400, 406). It was therefore improper to grant the respondent's motion for summary judgment (see, Ugarriza v. Schmieder, 46 N.Y.2d 471, 474).
Since the respondent's motion for summary judgment is denied, there is no need to sever the action against the defendant Reyner, and that severance falls with the reversal of the judgment. Niehoff, J.P., Rubin, Kunzeman and Spatt, JJ., concur.