Opinion
April 12, 1984
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Doerr and Moule, JJ.
Order unanimously affirmed, with costs. Memorandum: Plaintiff Daniel Oswald was injured while using a track hoist manufactured by defendant Reimann Georger, Inc. Plaintiffs' complaint against Briggs Stratton Corporation, the manufacturer of the gasoline engine incorporated into the hoist, has been dismissed as barred by the Statute of Limitations. Defendant Briggs Stratton appeals from the denial of its motion for summary judgment dismissing Reimann Georger's cross claim against it. We affirm. Reimann Georger's cross claim for apportionment of fault necessarily depends upon the proof adduced at trial and the basis of plaintiffs' recovery, if any, against it. Since Reimann Georger cannot at this stage "lay bare" its proof on its cross claim, the motion is premature. Moreover, summary judgment is rarely granted in negligence actions (see McDougal v County of Livingston, 89 A.D.2d 815, 816).