Opinion
December 31, 1984
Appeal from the Supreme Court, Westchester County (Stolarik, J.).
Order modified, on the law, by granting E.W. Bliss' motion for summary judgment, action as against it dismissed, and action as against General Electric severed. As so modified, order affirmed, without costs or disbursements.
Plaintiff was injured while operating an inclinable press on August 31, 1979. The machine had been manufactured and sold in 1930 by defendant E.W. Bliss to Micarta Fabricators, Inc. No later than 1963, the press came into the possession of defendant General Electric. The latter company radically restructured the press and subsequently sold it in 1979 to plaintiff's employer. Shortly thereafter plaintiff was injured while attempting to remove materials that had become stuck in the machine.
Plaintiff, as a matter of law, has shown no potential liability on the part of defendant E.W. Bliss, based upon its manufacture, design, or sale of the machine in 1930 (see Robinson v Reed-Prentice Div., 49 N.Y.2d 471). It is clear, however, that General Electric provided the operating mechanism controlling the movement of the die which injured plaintiff, and that there are issues of fact as to General Electric's potential liability. General Electric's argument that because it was a mere intermediate user it could not be held liable on theories of strict products liability and breach of warranty was not raised at Special Term and will not be considered for the first time on appeal ( Moise v. Christian, 97 A.D.2d 536; Arnold v. New City Condominiums Corp., 88 A.D.2d 578). Thompson, J.P., O'Connor, Niehoff and Boyers, JJ., concur.