Shanks v. Mills

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

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.