Opinion
April 14, 1993
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Callahan, J.P., Pine, Balio, Lawton and Doerr, JJ.
Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following Memorandum: We conclude that arguably a question of fact exists whether defendant Pine Tree Machinery is a successor corporation to defendant Rigby Machinery, Inc. and therefore strictly liable for plaintiff's injuries (see, Sweatland v Park Corp., 181 A.D.2d 243, 245-246). This issue should be determined at trial rather than by summary disposition (see, Cooney v Osgood Mach., 174 A.D.2d 1046). Consequently, Supreme Court erred in granting Pine Tree's motion for summary judgment to the extent that plaintiff's complaint sought to impose liability on Pine Tree based on successor liability (see generally, Glick Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 441; Hourigan v McGarry, 106 A.D.2d 845, 845-846, appeal dismissed 65 N.Y.2d 637). We agree with Supreme Court, however, that Pine Tree did not have an independent duty to warn plaintiff of the defective condition of the machine (see, Sullivan v Joy Mfg. Co., 70 N.Y.2d 806, 808-809).