Opinion
February 13, 1990
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.
We agree with the third-party defendant orthodontist Dr. Cain that the third-party plaintiff, who distributed the dental device which allegedly caused the infant plaintiff's injury, has failed to come forward with evidentiary facts which show that a triable issue exists as to the allegations of negligence on the part of Dr. Cain (see, Zuckerman v City of New York, 49 N.Y.2d 557). The record does not indicate that Dr. Cain was negligent in prescribing the night brace distributed by the third-party plaintiff. Nor could Dr. Cain be held liable under a theory of breach of warranty or products liability. The prescription of the night brace did not constitute a "sale" of the device which is required in order to state a cause of action sounding in products liability and breach of warranty, but was merely a procedure incidental to medical treatment (see, Perlmutter v Beth David Hosp., 308 N.Y. 100; Goldfarb v Teitelbaum, 149 A.D.2d 566). Brown, J.P., Rubin, Kooper and Harwood, JJ., concur.