Miceli v. Purex Corporation

84 A.D.2d 562, 443 N.Y.S.2d 269, 1981 N.Y. App. Div. LEXIS 15636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1981
• Status: Published

Opinion

In a personal injury action based upon theories of negligence, breach of warranty and strict products liability, defendant Union Carbide Chemical and Plastics, Inc., and defendant George Senn, Inc., separately appeal from so much of an order of the Supreme Court, Nassau County (Spatt, J.), entered July 17, 1981, as denied Union Carbide’s motion for summary judgment dismissing the complaint and denied George Senn, Inc.’s cross motion seeking the same relief. Order affirmed, insofar as appealed from, without costs or disbursements. “ ‘[Sjummary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue’ (Moskowitz v Garlock, 23 AD2d 943, 944)” (Rotuba Extruders v Ceppos, 46 NY2d 223, 231; see Phillips v Kantor & Co., 31 NY2d 307, 311). Moreover, on a motion for summary judgment, the court’s duty is merely to determine whether an issue of fact exists, not to resolve it (see Barr v County of Albany, 50 NY2d 247, 254). At bar, the opinion of plaintiffs’ expert is based upon his examination of plaintiff Albert Miceli, his review of said plaintiff’s medical history and his uncontested expertise in toxicology and internal medicine. While the precise basis for his opinion might have been more clearly articulated, it cannot be said that that opinion is so based upon speculation and conjecture that there is no doubt that there is no triable issue concerning whether Mr. Miceli has come to suffer from toxic neuropathy and whether the cause of his condition was his use of the chemical solvent methyl ethyl ketone. Damiani, J. P., Gulotta, Margett and Bracken, JJ., concur.