Betro v. GAC International Inc.

158 A.D.2d 498, 551 N.Y.S.2d 72, 1990 N.Y. App. Div. LEXIS 1814

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1990
• Status: Published

Opinion

We agree with the third-party defendant orthodontist Dr. Cain that the third-party plaintiff, who distributed the dental device which allegedly caused the infant plaintiff’s injury, has failed to come forward with evidentiary facts which show that a triable issue exists as to the allegations of negligence on the part of Dr. Cain (see, Zuckerman v City of New York, 49 NY2d 557). The record does not indicate that Dr. Cain was negligent in prescribing the night brace distributed by the third-party plaintiff. Nor could Dr. Cain be held liable under a theory of breach of warranty or products liability. The prescription of the night brace did not constitute a "sale” of the device which is required in order to state a cause of action sounding in products liability and breach of warranty, but was merely a procedure incidental to medical treatment (see, Perlmutter v Beth David Hosp., 308 NY 100; Goldfarb v Teitelbaum, 149 AD2d 566). Brown, J. P., Rubin, Hooper and Harwood, JJ., concur.