Gerstner v. Clinton's Ditch Cooperative, Inc.

94 A.D.2d 976, 464 N.Y.S.2d 101, 1983 N.Y. App. Div. LEXIS 18476

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1983
• Status: Published

Opinion

— Order unanimously reversed, without costs, and defendant Clinton’s Ditch Cooperative, Inc.’s motion granted. Memorandum: Plaintiff was injured when she opened a 32-ounce glass bottle of Pepsi-Cola and the bottle cap flew off and struck her in the eye. Summary judgment should have been granted to defendant Clinton’s Ditch Cooperative, Inc., because the evidence presented at Special Term established that it did not alter the bottle cap in any way while it was in its control, and therefore it cannot be held liable for strict products liability (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479). The opposing affidavit made by counsel for defendant Bells Supermarket contained only unsubstantiated allegations which are insufficient to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562). (Appeal from order of Supreme Court, Erie County, Marshall, J. — summary judgment.) Present — Hancock, Jr., J. P., Doerr, Denman, Green and Moule, JJ.