Opinion
May 26, 1998
Appeal from the Supreme Court, Queens County (Posner, J.)
Ordered that the order is modified, on the law, by deleting therefrom the provisions denying the aforementioned branch of the motion of South Brooklyn Casket Company, Inc., and the cross motion of Service Corporation International, and substituting therefor provisions granting the aforementioned branch of the motion and the cross motion and dismissing the products liability cause of action and the third-party and second third-party actions seeking indemnification and contribution relating to the products liability cause of action; as so modified, the order is affirmed, with one bill of costs to the appellants payable by the respondents appearing separately and filing separate briefs.
To make out a prima facie case sounding in products liability, the plaintiff's must show that the defect in the subject damaged casket existed at the time it left the defendant manufacturer Service Corporation International or the third-party defendant distributor South Brooklyn Casket Company, Inc. (hereinafter the appellants) ( see, Rosado v. Proctor Schwartz, 66 N.Y.2d 21, 25; Tardella v. RJR Nabisco, 178 A.D.2d 737). A defective condition may be inferred from proof that the product did not perform as intended, provided that the plaintiff's exclude all causes of the defect not attributable to the appellants ( see, Halloran v. Virginia Chems., 41 N.Y.2d 386, 388; Rosa v. General Motors Corp., 226 A.D.2d 213). However, the appellants evidence demonstrated that the casket was not defective when sold, and that "the defect was caused by damage sustained when it was placed in the crypt. The plaintiff's evidence merely consisted of observations of the damaged casket, which did not contradict the movants' evidence. The plaintiff's did not offer any evidence of a particular defect which existed at the time of manufacture or distribution ( see, Rosa v. General Motors Corp., supra). Thus, the appellants are entitled to summary judgment dismissing the claims relating to products liability ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Tardella v. RJR Nabisco, supra).
The remaining contentions regarding the dismissal of the cross claim and counterclaim against Martin A. Gleason, Inc., Funeral Homes are academic in light of the dismissal of the products liability related claims against the appellants here.
O'Brien, J.P., Sullivan, Pizzuto and Krausman, JJ., concur.