Opinion
May 22, 1967
Appeal by the plaintiff from an order and judgment which dismissed his complaint for failure to state a cause of action. On a motion to dismiss a complaint for failure to state a cause of action, the material allegations of the complaint are accepted as true for the purpose of the motion and the pleadings are liberally construed. ( Carnival Co. v. Metro-Goldwyn-Mayer, 23 A.D.2d 75; Epps v. Yonkers Raceway, 21 A.D.2d 798.) However, on motions such as this, all manner of extrinsic proof may be properly considered. ( Hamilton Print. Co. v. Payne Corp., 26 A.D.2d 876.) The present complaint alleges that the defendant manufactured and sold a defective lifting device to the plaintiff's employer and that as a result of the defect the plaintiff was injured while using the device. It also alleges a breach of implied warranty by the defendant. The affidavit of a vice-president of the defendant, submitted in support of the motion to dismiss, asserts among other things that its products are sold only to independent distributors; that it sold no equipment or mechanisms to plaintiff's employer; that upon information and belief the defective equipment was purchased by the employer from a third party as part of some larger equipment; that it sells the device here involved to trailer manufacturers and they incorporate it into the complete trailer assembly. In the case of Goldberg v. Kollsman Instrument Corp. ( 12 N.Y.2d 432) it was held that the manufacturer of a component part would not be held liable to third-party users of the entire product. Special Term decided that the Goldberg rule applied to the instant case and, therefore, dismissed the complaint. We determined that since the complaint reasonably alleges sale of the defective device directly to the employer, which on this motion must be accepted as true, and since the affidavit referred to above denies such sale, there is a question of fact presented and accordingly the complaint should not have been dismissed for failure to state a cause of action. No other argument is directed to the sufficiency of the complaint in this regard. In view of our determination, it is not necessary on this appeal to reach the issue decided in Goldberg ( supra). The second ground for dismissal argued by the defendant on its motion and upon the appeal in this court is that there is a lack of personal jurisdiction over the defendant. The defendant is a nondomicillary of New York State and was served outside the State of New York. The plaintiff argues that the defendant was doing business in New York and thus comes within CPLR 302 (subd. [a], par. 1). In Saratoga Racing Assn. v. Moss ( 26 A.D.2d 486, 490) the court stated: "CPLR 302 (subd. [a]) is a procedural statute and in no way enlarges or extends the liability of the appellants [non-domiliciaries]. The plaintiff has the burden of proof and for the purpose of this motion must show by the complaint and supporting affidavits the essential requirements of the statute." Special Term found that the complaint set forth facts which show that the defendant was transacting business in New York State and as noted by that court it is admitted by the defendant that occasional visits are made by a "trouble shooter" to users of its equipment in this State. It appears that one of defendant's engineers had been to the place of business of the plaintiff's employer checking on alleged defects. Judgment reversed, on the law and the facts, and motion denied, with costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.P.