Losada v. Mobil Oil Corp.

128 A.D.2d 594

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1987
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, the defendants 138 Hillside Service Station, Inc. and Alan A. Uhl, doing business as Queens-Hill Service Station, appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Leviss, J.), dated July 5, 1985, as (1) denied the plaintiffs cross motion which was joined in by the appellants, to disqualify the attorney for the defendant General Battery Company, and (2) upon renewal of so much of an order of the same court, dated April 4, 1984, as granted the cross motion of the defendant Gould, Inc. to dismiss the plaintiffs complaint as against it, adhered to its original determination.

Ordered, that the order is affirmed insofar as appealed from, with costs.

The respondents concede in their moving papers and on appeal that General Battery was the manufacturer of the battery which allegedly exploded, resulting in personal injury to the plaintiff. We therefore find that the respondent Gould was not the manufacturer of the battery in question, that no claim in negligence lies against Gould, and that Special Term properly dismissed the complaint as against Gould. Moreover, in view of this concession, there is no conflict of interest between Gould and General Battery so as to warrant the disqualification of their shared counsel. Thompson, J. P., Weinstein, Eiber and Spatt, JJ., concur.