Opinion
March 13, 1990
Appeal from the Supreme Court, New York County (Carmen Beauchamp Ciparick, J.).
We see no reason under the facts in this case to depart from the general rule that "questions of design defect and a manufacturer's failure to warn are generally inappropriate for resolution on a summary judgment motion." (Feiner v Calvin Klein, Ltd. 157 A.D.2d 501, 502.) The IAS court properly concluded that questions of fact exist as to the identity of the defective garment. Further, it is well settled that in an action of this kind, the existence of a defect may be inferred from proof that the product did not perform as intended, which excludes all causes of the accident not attributable to the defendants. (Halloran v Virginia Chems., 41 N.Y.2d 386, 388.) Nor are we satisfied, on this record, that defendant Sport Spot, Inc. has demonstrated a complete absence of negligence. (Naples v City of New York, 34 A.D.2d 577.)
It was not an improvident exercise of discretion to grant a trial preference, in view of the psychiatric evidence and plaintiff's destitute condition.
Concur — Sullivan, J.P., Milonas, Rosenberger and Smith, JJ.