Eshel v. Makita U.S.A., Inc.

248 A.D.2d 583, 669 N.Y.S.2d 909, 1998 N.Y. App. Div. LEXIS 2928

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Westchester County (Coppola, J.), entered May 28, 1997, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the defendants’ motion which was for summary judgment dismissing the plaintiffs’ cause of action to recover damages for breach of an express warranty and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the defendants.

The plaintiff Jakob Eshel was injured by a drill when the drill bit became lodged in a brass fitting which he was drilling. Eshel alleged that when the drill bit became stuck, the drill continued to rotate and twisted out of his hands causing the chuck key, which was attached to the power cord, to swing around and hit him in the right side of the head, penetrating his skull. The drill was manufactured by the defendant Makita Electric Works, Ltd. and distributed by the defendant Makita U.S.A., Inc. Jakob Eshel bought the drill at a store owned by the defendant Pergament Home Centers.

The Supreme Court erred in failing to grant summary judgment to the defendants on the plaintiffs’ cause of action to recover damages for breach of an express warranty. The record reflects that in purchasing the drill Jakob Eshel did not rely on the express warranty allegedly breached (see, Schimmenti v Ply Gem Indus., 156 AD2d 658).

We have considered the defendants’ remaining contentions and find them to be without merit.

Copertino, J. P., Altman, Florio and Luciano, JJ., concur.