Sokolowski v. Manco Products, Inc.

56 A.D.2d 1261, 867 N.Y.S.2d 835

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 2008
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered November 26, 2007 in a personal injury action. The order, insofar as appealed from, denied in part the motion of defendant Manco Products, Inc. for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when a tire rim exploded while he was attempting to inflate the tire of a go-cart. We conclude that Supreme Court properly denied those parts of the motion of Manco Products, Inc. (defendant) for summary judgment dismissing the claim for strict products liability based on a manufacturing defect as well as the negligence cause of action against it. With respect to strict products liability, we conclude on the record before us that there is a triable issue of fact whether the defective rim was distributed by defendant and, if so, whether defendant’s testing procedures were sufficient with respect to the inflation of the tire (see generally Ramos v Howard Indus., Inc., 10 NY3d 218, 223-224 [2008]). With respect to the negligence cause of action, we also conclude on the record before us that there is a triable issue of fact inasmuch as evidence supporting a claim of strict products liability based on a manufacturing defect may also constitute evidence of negligence (see Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55, 62 [1980]; see generally Rutherford v Signode Corp., 11 AD3d 922, 922-923 [2004], lv denied 4 NY3d 702 [2005]; Cooley v Carter-Wallace Inc., 102 AD2d 642, 643-644 [1984]). Present — Martoche, J.P., Smith, Centra, Peradotto and Pine, JJ.