Opinion
April 15, 1974
In an action to recover damages for personal injuries sustained by the female plaintiff and for loss of services, etc., sustained by her husband, (1) defendant Bock Laundry Machine Company appeals from so much of an order of the Supreme Court, Queens County, dated September 10, 1973, as (a) granted motions by plaintiffs and defendant Kaplan to reargue a motion by said defendant Bock for partial summary judgment, (b) upon reargument, (i) vacated a prior decision and order insofar as they dismissed, on the ground of the Statute of Limitations, a cause of action and a derivative cause of action founded in strict liability in tort and (ii) granted plaintiffs and said defendant Kaplan leave to serve amended pleadings alleging causes of action in strict liability in tort, and (c) denied a cross motion by said defendant Bock, based on the Statute of Limitations, to dismiss the third cause of action in plaintiffs' complaint, which is based on strict liability in tort, and the fourth cause of action to the extent that it is derived from the third cause of action; and (2) plaintiffs and said defendant Kaplan cross-appeal from the remainder of the order, which, upon reargument, adhered to said prior decision insofar as it dismissed, also on the ground of the Statute of Limitations, the claims of breach of warranty and apportionment of relative responsibility upon breach of warranty. Order affirmed, with one bill of $20 costs and disbursements jointly to plaintiffs and to defendant Kaplan against Bock Laundry Machine Company, upon the authority of Rivera v. Berkeley Super Wash ( 44 A.D.2d 316]). Martuscello, Acting P.J., Shapiro, Christ and Munder, JJ., concur; Benjamin, J., dissents and votes (1) to modify the order by striking therefrom the third, fourth, fifth and sixth decretal paragraphs and by substituting therefor a provision (a) adhering to the prior decision and order insofar as they dismissed a cause of action founded in strict liability in tort and (b) granting the cross motion of defendant Bock Laundry Machine Company to dismiss the third cause of action in plaintiffs' complaint and the fourth cause of action to the extent that it is derived from the third cause of action and (2) to affirm the order as so modified, for the reasons set forth in his dissenting opinion in Rivera v. Berkeley Super Wash ( 44 A.D.2d 316).