Becton v. Firestone Tire Co.

38 A.D.2d 693, 327 N.Y.S.2d 965, 10 U.C.C. Rep. Serv. (West) 109, 1972 N.Y. App. Div. LEXIS 5614

Opinion

Order, Supreme Court, Bronx County, entered on June 10, 1970, denying defendant-appellant's motion to dismiss for insufficiency, unanimously reversed, on the law, without costs and without disbursements, the motion granted and the complaint dismissed, with leave, however, to plaintiff in the interests of justice to apply at Special Term for leave to serve an amended complaint within 20 days after service upon him by defendant-appellant of a copy of the order herein, with notice of entry thereon. We have held that the mere fact of a “blowout” does not, in and of itself, establish a breach of warranty (Halpern v. Jad Constr. Corp., 19 A D 2d 875, affd. 15 N Y 2d 823). Plaintiff has failed to allege in what respect there was such breach, and wherein the deficiency lay. It might be that on a repleading the defect can be remedied. In light of the short interval between purchase of the tire and the occurrence of the accident, plaintiff should be afforded an opportunity to do so. Concur — Stevens, P. J., McGivern, Kupferman, Murphy and Capozzoli, JJ.