Shanks v. Mills

Appellate Division of the Supreme Court of New York

Shanks v. Mills

58 A.D.2d 741, 395 N.Y.S.2d 856, 1977 N.Y. App. Div. LEXIS 12869

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 3, 1977

DocketAppeal No. 1

StatusPublished

Cited by2 cases

This text of 58 A.D.2d 741 (Shanks v. Mills) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Shanks v. Mills, 58 A.D.2d 741, 395 N.Y.S.2d 856, 1977 N.Y. App. Div. LEXIS 12869 (N.Y. Ct. App. 1977).

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Opinion

— Order unanimously affirmed, without costs. Memorandum: This action seeks to recover damages sustained by the plaintiffs when a T-Shirt allegedly purchased at defendant K Mart’s store burst into flames while the infant plaintiff was wearing it. Summary judgment was properly granted in favor of defendant Diener because there was no evidence that Diener had manufactured the shirt in question or supplied it to K Mart. Special Term also properly denied summary judgment against defendant Oneita because there exists a question of fact as to whether Oneita manufactured the shirt sold to plaintiff. Further, we find no error in the court’s refusal to limit the factual issues for trial, as requested by defendant K Mart, by determining that the shirts generally sold by K Mart at the time of plaintiff’s purchase were supplied exclusively by defendant Oneita (see CPLR 3212, subd [g]). That information is exclusively within the knowledge of K Mart and should be a matter of proof at trial. (Appeal from order of Erie Supreme Court — partial summary judgment.) Present — Moule, J. P., Simons, Dillon and Witmer, JJ.

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— Order unanimously affirmed, without costs. Memorandum: This action seeks to recover damages sustained by the plaintiffs when a T-Shirt allegedly purchased at defendant K Mart’s store burst into flames while the infant plaintiff was wearing it. Summary judgment was properly granted in favor of defendant Diener because there was no evidence that Diener had manufactured the shirt in question or supplied it to K Mart. Special Term also properly denied summary judgment against defendant Oneita because there exists a question of fact as to whether Oneita manufactured the shirt sold to plaintiff. Further, we find no error in the court’s refusal to limit the factual issues for trial, as requested by defendant K Mart, by determining that the shirts generally sold by K Mart at the time of plaintiff’s purchase were supplied exclusively by defendant Oneita (see CPLR 3212, subd [g]). That information is exclusively within the knowledge of K Mart and should be a matter of proof at trial. (Appeal from order of Erie Supreme Court — partial summary judgment.) Present — Moule, J. P., Simons, Dillon and Witmer, JJ.

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Bluebook (online)

58 A.D.2d 741, 395 N.Y.S.2d 856, 1977 N.Y. App. Div. LEXIS 12869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shanks-v-mills-nyappdiv-1977.

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