The jury unanimously found that it was, and proceeded to hold defendant liable. Stiles v. Batavia Atomic Horseshoes, Inc., 174 A.D.2d 287, 290, 579 N.Y.S.2d 790, 792 (4th Dep't 1992). The Appellate Division affirmed, holding both that the answer to the interrogatory was adequately supported by the evidence and that regular dealers in used products are subject to strict liability.

See Stiles v. Batavia Atomic Horse-shoes, Inc., 81 N.Y.2d 950, 951, 597 N.Y.S.2d 666, 667, 613 N.E.2d 572 (1993). This rule is reflected in the Restatement (Second) of Torts § 402A, which the New York Court of Appeals has yet to adopt explicitly, Stiles v. Batavia Atomic Horseshoes, Inc., 174 A.D.2d 287, 291 n. 1, 579 N.Y.S.2d 790, 793 n. 1 (4th Dep't 1992) (citing Micallef v. Miehle Co., 39 N.Y.2d 376, 387-88, 384 N.Y.S.2d 115, 122, 348 N.E.2d 571 (1976)), rev'd on other grounds 81 N.Y.2d 950, 597 N.Y.S.2d 666, 613 N.E.2d 572 (1993), but which it has cited with approval in discussing the scope of strict products liability, see, e.g., Sukljian, 69 N.Y.2d at 95, 511 N.Y.S.2d at 823, 503 N.E.2d 1358. There are two principal reasons for imposing strict products liability on ordinary sellers.

Id. In Stiles v. Batavia Atomic Horseshoes, Inc., 174 A.D.2d 287, 579 N.Y.S.2d 790 (4th Dep't 1992), rev'd on other grounds, 81 N.Y.2d 950, 597 N.Y.S.2d 666, 613 N.E.2d 572(1993), the plaintiff, after having his hands crushed by a defective punch press which required subsequent corrective surgeries, was awarded a verdict for approximately One Million Seven Hundred Thousand Dollars ($1,700,000.00). Id. The plaintiff's injuries were permanent and severe, consisting of an amputation of three fingers of the right hand, deformity of the left hand, and an overall sixty one percent (61%) permanent disability.

In Stiles, the plaintiff was injured while operating a punch press owned by his employer, which had purchased the press in used condition from Batavia. Batavia bought five punch presses at auction, kept two and resold the other three, including the one sold to the plaintiff's employer ( see Stiles v Batavia Atomic Horse-shoes, 174 AD2d 287, 289 [4th Dept 1992]). The jury awarded damages to the plaintiff, "conclud[ing] that Batavia was a regular seller of used goods and thus, under the court's instructions, accountable to plaintiff under the theory of strict products liability" ( Stiles, 81 NY2d at 951).

Without reaching the question of whether all such agreements are invalid, we find that no such agreement was reached in the circumstances here presented. (Cf., Stiles v Batavia Atomic Horeshoes, 174 A.D.2d 287, revd on other grounds 81 N.Y.2d 950.) In Booth v Mary Carter Paint Co. ( 202 So.2d 8 [Fla Dist Ct App 1967]), the case which gave rise to the phrase "Mary Carter agreement", the court upheld, as not constituting a release, a secret arrangement, reduced to writing and signed by the parties, between the plaintiff and two of the five defendants to have the latter, despite an agreement limiting the liability of those defendants to a sum certain, continue to litigate the matter in order to thrust the lion's share of liability on the nonagreeing defendants.

But courts in at least twelve other states have held otherwise. Compare Jordan v. Sunnyslope Appliance Propane Plumbing Supplies, Co., 660 P.2d 1236, 1241 (Ariz.Ct.App. 1983) (holding dealer engaged in business of selling used goods strictly liable); Turner v. International Harvester Co., 336 A.2d 62, 69 (N.J.Super.Ct. App. Div. 1975) (seller of used motor vehicle, sold "as is," strictly liable for safety defects whether known or unknown); Stiles v. Batavia Atomic Horseshoes, Inc., 579 N.Y.S.2d 790, 792 (N.Y.App.Div. 199 2) (regular seller of used products subject to strict liability); Mixter v. Mack Trucks, Inc., 308 A.2d 139, 142 (Pa.Super.Ct. 1973) (seller of used truck strictly liable for tire rim defective at time truck sold); Hovenden v. Tenbush, 529 S.W.2d 302, 310 (Tex.Ct.App. 1975) (holding sellers of used goods strictly liable); Thompson v. Rockford Machine Tool Co., 744 P.2d 357, 361 (Wash.Ct.App. 1987) (strict liability applies to dealer of used products); and Nelson v. Nelson Hardware, Inc., 467 N.W.2d 518, 524-25 (Wis. 1991) (seller of used products strictly liable "even though completely innocent or completely uninvolved in creating the defect") with Kodiak Electric Assoc., Inc. v. Deleval Turbine, Inc., 694 P.2d 150, 154 n. 6 (Alaska 1984) (sale of used item does not render seller strictly liable unless item has undergone extensive repair, inspection, and testing at hands of seller); Wilkinson v. Hicks, 179 Cal.Rptr. 5, 8 (Cal.Ct.App. 1981) (refusing to extend strict liability to dealer o

Under New York law, Mary Carter agreements are void as against public policy, because they secretly realign the parties, may confuse juries if not disclosed, and may affect the settling defendant's presentation of evidence in a way that prejudices the nonsettling defendants (with the nonsettling defendants being bushwacked because they don't know about the agreement). See, e.g., Sierra Rutile Ltd v. Katz, 1994 WL 577888 (S.D.N.Y.) (citing Stiles v. Batavia Atomic Horseshoes, Inc., 174 A.D.2d 287, 579 N.Y.S.2d 790, 793 (4th Dept. 1992)). The difference between the Settlement Agreement here and a Mary Carter agreement is that the latter raise an obvious risk of collusion and prejudice — they are secret, and the settling defendant remains in the litigation to create a misleading presentation and jury confusion in a way unbeknownst to the non-settling defendants.

Most jurisdictions, including New York, hold that such agreements are void as against public policy, because they secretly realign the parties, may confuse juries if not disclosed, and may affect the settling defendant's presentation of evidence in a way that prejudices the nonsettling defendants. See, e.g., Sierra Rutile Ltd v. Katz, No. 90 Civ. 4913 (JFK), 1994 WL 577888 (S.D.N.Y. Oct. 19. 1994) (citing Stiles v. Batavia Atomic Horseshoes, Inc., 579 N.Y.S.2d 790, 793 (N.Y.App.Div. 199 2)). In this case, however, the settlement agreement, while secret from the nonsettling defendants, was disclosed to me, and was for a sum certain.

Here, Metalcrafters does not contend that it was not engaged in the business of selling Verson press brakes; rather, it argues that it was not engaged in the business of selling any press brakes, a very different and distinguishing situation. The plaintiffs also rely on Stiles v. Batavia Atomic Horseshoes, Inc., 579 N.Y.S.2d 790 (Sup.Ct. A.D. 1992). That decision was overturned by the New York Court of Appeals on precisely the point for which the plaintiffs cite it. In Stiles v. Batavia Atomic Horseshoes, Inc., 613 N.E.2d 572, 573 (1993), the state's highest court held that "incidental transactions involving the purchase and resale of used industrial machinery on three occasions" could not establish that the defendant engaged in the sales of such equipment as a regular part of its business for purposes of strict liability.

In that context, the court of appeals concluded, the evidence did not support a finding that the defendant had "engaged in sales of equipment as a `regular part of its business.'" Stiles v. Batavia Atomic Horseshoes, Inc., 174 A.D.2d 287, 579 N.Y.S.2d 790, 792-93 (1992), rev'd, 81 N.Y.2d 950, 597 N.Y.S.2d 666, 613 N.E.2d 572 (1993). The Pennsylvania Supreme Court has set forth four factors to consider when determining whether strict liability under § 402A should be extended to a particular party.