Radford v. Sheridan Products, Inc.

181 A.D.2d 667, 581 N.Y.S.2d 683, 1992 N.Y. App. Div. LEXIS 2999

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1992
• Status: Published

Opinion

— Motion by the respondent for reargument of his motion to dismiss an appeal by the defendant Sheridan Products, Inc., taken by permission of the trial court, from an order of the Supreme Court, Nassau County (Roncallo, J.), dated February 1, 1990, which, in an action to recover damages for personal injuries, etc., denied its motion made at the conclusion of the plaintiffs case during the liability portion of a bifurcated trial, to dismiss the complaint insofar as it is asserted against it.

Upon oral argument of the parties, it is,

Ordered that the motion is granted, and the appeal is dismissed, without costs or disbursements.

The record reveals that the order from which the appeal is taken is a trial ruling denying the appellant’s motion to dismiss the complaint insofar as it is asserted against it, made at the close of the plaintiffs case. At oral argument of the appeal, the plaintiff moved to reargue his earlier motion to dismiss the appeal, which was denied by decision and order of this court dated June 26, 1990.

Upon reargument of the plaintiffs motion, we conclude that the order purportedly appealed from is merely an oral trial ruling which has been memorialized in writing. Such a ruling is not appealable either as of right or by permission (see, CPLR 5501; Slavin v Berlin, 172 AD2d 514; Leiner v Howard’s Appliance, 104 AD2d 634). Accordingly, the appeal must be dismissed.

In any event, if we were to review the order, we would find that the plaintiff presented a prima facie case sounding in strict products liability for a design defect which prevented the average user of the appellant’s air rifle from clearly discerning whether it was loaded. Thompson, J. P., Sullivan, Harwood and Balletta, JJ., concur.