Opinion
November 20, 1995
Appeal from the Supreme Court, Westchester County (Ingrassia, J.).
Ordered that the appeal from the order dated November 21, 1994, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated June 2, 1994, is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
The plaintiff was injured on a conveyor belt of a breadmaking machine at his place of employment. The plaintiff alleged that the machine and its conveyor belt were manufactured by the defendant. The defendant, in turn, brought a third-party action against the plaintiff's employer, J.J. Cassone's Bakery. The plaintiff failed to establish that the defendant manufactured the conveyor belt, or that the defendant maintained and repaired it. Accordingly, the Supreme Court properly granted the defendant summary judgment (see, Hymowitz v Lilly Co., 73 N.Y.2d 487, 504, cert denied 493 U.S. 944; D'Amico v Manufacturers Hanover Trust Co., 173 A.D.2d 263, 265-266).
The plaintiff contends that the third-party defendant is responsible for the failure of proof because it failed to preserve the machine for inspection, and therefore, summary judgment should not have been granted. The third-party defendant sold the machine approximately one year after the accident, but two years prior to the commencement of this action (see, Vaughn v City of New York, 201 A.D.2d 556, 558). Since the third-party defendant had no duty to preserve the machine after the plaintiff's accident (see, McAllister v Renu Indus. Tire Corp., 202 A.D.2d 556, 557), the plaintiff's delay in moving to protect his interests should not now work to his benefit (see, Berwecky v Montgomery Ward, 214 A.D.2d 936). Sullivan, J.P., Thompson, Hart and Goldstein, JJ., concur.