Duarte v. Mesta Painting Corp.

235 A.D.2d 273, 652 N.Y.S.2d 517, 1997 N.Y. App. Div. LEXIS 269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1997
• Status: Published

Opinion

Order, Supreme Court, New York County (Charles Ramos, J.), entered April 24, 1996, which, in a products liability action, insofar as appealed from, denied the motion of defendants-appellants manufacturer and seller for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We agree with the IAS Court there is sufficient circumstantial evidence to raise an issue of fact as to whether the accident-causing, lost paint gun supplied to plaintiff by the contractor was manufactured and sold by appellants (see, Healey v Firestone Tire & Rubber Co., 87 NY2d 596, 601-602, citing, inter alia, Taylor v General Battery Corp., 183 AD2d 990), and whether the accident was due to a product defect (see, McDermott v City of New York, 50 NY2d 211, 220-221; Mitchell v Maguire Co., 151 AD2d 355). Defendants have failed to establish either of those facts to warrant summary judgment in their favor. Concur—Ellerin, J. P., Wallach, Nardelli, Tom and Mazzarelli, JJ.