In re Warsaw

221 A.D.2d 933, 634 N.Y.S.2d 14, 1995 N.Y. App. Div. LEXIS 13419

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1995
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed with costs to plaintiff in accordance with the following Memorandum: Plaintiff was seriously injured when struck by a 1,500 pound bushing that slipped out of a cone crusher that was under repair. He appeals from that portion of an order granting the cross motion of Rexnord, Inc. (defendant) for summary judgment dismissing the second cause of action of the complaint. As limited by plaintiff’s brief and oral argument, the only issue raised on appeal is whether summary judgment was properly granted on that portion of the second cause of action alleging strict products liability based upon a failure to warn. We conclude that factual issues exist whether defendant, the manufacturer of the cone crusher, gave adequate warning of the proper and safe method of removal and repair of the bushing in light of the nature of the product and the potential danger (see, Frederick v Niagara Mach. & Tool Works, 107 ; Cooley v Carter-Wallace Inc., 102 AD2d 642). Thus, we modify the order on appeal by denying the cross motion insofar as it seeks summary judgment dismissing that portion of the second cause of action asserting strict products liability based upon a failure to warn and by reinstating that portion of the complaint. (Appeal from Order of Supreme Court, Erie County, Wolfgang, J.—Summary Judgment.) Present—Green, J. P., Lawton, Callahan, Balio and Boehm, JJ.