Martin v. Rockwell Graphic Systems, Inc.

192 A.D.2d 1124, 596 N.Y.S.2d 627

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1993
• Status: Published

Opinion

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant Rockwell Graphic Systems, Inc.’s (Rockwell) motion for summary judgment dismissing plaintiff’s first through third causes of action alleging negligence, failure to warn and strict products liability. The parties submitted conflicting affidavits from their experts with respect to whether plaintiff’s injuries were caused by a cutting machine as originally manufactured by Rockwell or by the subsequent modifications to that machine by defendant Ed Peterson Cutting Equipment Corp.

We reject Rockwell’s contention that plaintiff’s fourth through sixth causes of action against Rockwell, breach of express and implied warranties, should be dismissed as time-barred. Rockwell waived its Statute of Limitations defense by failing to plead it in its answer or in its motion for summary judgment (see, CPLR 3211 [e]; see also, Matter of Augenblick v Town of Cortlandt, 66 NY2d 775, 777, rearg denied 67 NY2d 647). (Appeal from Order of Supreme Court, Onondaga County, Reagan, J. — Summary Judgment.) Present — Callahan, J. P., Pine, Fallon, Doerr and Boehm, JJ.