Summary
giving no facts but saying that plaintiff needed to allege what labels on ladder would have warned about and how the lack of the warning was a proximate cause of the injury
Summary of this case from Moore v. Ford Motor Co.Opinion
Argued April 19, 1999
June 1, 1999
In an action to recover damages for personal injuries, etc., the defendant Chesebro-Whitman Co. appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), dated August 28, 1998, as, upon reargument of an order of the same court dated March 31, 1998, denied those branches of its motion which were for summary judgment dismissing the causes of action to recover damages for negligence and strict products liability insofar as asserted against it. The plaintiffs appeal from the order dated March 31, 1998.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger, Garden City, N.Y. (Christine Gasser of counsel), for appellant-respondent.
Levine Grossman, Mineola, N.Y. (Mary-Rita Wallace and Michael B. Grossman of counsel), for respondents-appellants.
LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, JJ.
DECISION ORDER
ORDERED that the appeal by the plaintiffs from the order dated March 31, 1998, is dismissed on the ground that the order is superseded by the order dated August 28, 1998; and it is further,
ORDERED that the order is modified by deleting the provision thereof denying that branch of the appellant's motion which was for summary judgment dismissing the cause of action to recover damages for strict products liability based on a failure to warn, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from; and it is further,
ORDERED that the plaintiffs are awarded one bill of costs.
The Supreme Court properly concluded that there remained a triable issue of fact as to whether there was a design or manufacturing defect in the subject ladder ( see, Voss v. Black Decker Mfg. Co., 59 N.Y.2d 102; Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376; Bolm v. Triumph Corp., 33 N.Y.2d 151).
However, the appellant was entitled to summary judgment dismissing the cause of action to recover damages for strict products liability based on a failure to warn where the plaintiffs failed to allege what the labels would have warned against and in what way the lack of such warnings was a proximate cause of the accident ( see, Finguerra v. Conn, 252 A.D.2d 463; Silveira Dias v. Marriott Intl., 251 A.D.2d 367; Glucksman v. Halsey Drug Co., 160 A.D.2d 305; Schimmenti v. Ply Gem Indus., 156 A.D.2d 658).