Opinion
570814/02, 02-347-348.
Decided November 20, 2003.
Defendants Barton Cyker Dental Supply, Inc. and Ampco Dental Equipment Co. appeal from an order of the Civil Court, New York County, entered May 23, 2002 (Debra Rose Samuels, J.) which denied their cross motions for summary judgment dismissing the complaint and all cross claims against them.
Order entered May 23, 2002 (Debra Rose Samuels, J.) reversed, with $10 costs, motions granted, and the complaint and all cross claims against defendants-appellants dismissed. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint and all cross claims as against them.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
This subrogation action, sounding in negligence and strict products liability, arises out of a flood that damaged commercial premises occupied by plaintiff's subrogor. Plaintiff alleges that the flood originated in a dental office located directly above its subrogor's premises and was caused by a water leak in a "Trimline"-model dental operating unit, a product manufactured by defendant-appellant Ampco Dental Equipment Co. (Ampco), distributed by defendant-appellant Barton Cyker Dental Supply, Inc. (Barton Cyker), and owned and operated by defendant-respondent Westside Dental Associates, P.C. (Westside).
Defendants-appellants moved for summary judgment seeking dismissal of the complaint, relying upon deposition testimony and documentation indicating that defendant Ampco had received no reports of water leaks involving its "Trimline" dental units prior to this incident in June 1995; that the particular dental unit in question had functioned properly and without leakage for 14 months following its installation by defendant Barton Cyker in April 1994; and that the "water feed" to the dental unit appears to have been left in the "On" position the night of the flood, in variance with the unit's operating manual and "industry practice." Defendants-appellants thus submitted competent proof establishing prima facie that the dental unit was properly manufactured and installed ( see, Nichols v. Acway, Inc., 280 AD2d 889). Plaintiff, which did not respond to the summary judgment motion, failed to meet its consequent burden to rebut defendant-appellants' exculpatory showing. Nor was a triable issue raised by defendant Westside's speculative assertion that the flood "might" have been caused by an unspecified "design or repair defect" in the dental unit's cuspidor ( cf., Speller v. Sears Roebuck + Co., 100 NY2d 38). Therefore, defendants-appellants were entitled to summary judgment dismissing the complaint and all cross claims as against them.
Nor has plaintiff submitted a respondent's brief on appeal.
This constitutes the decision and order of the court.