Treston v. Allegretta

166 A.D.2d 282, 564 N.Y.S.2d 113, 1990 N.Y. App. Div. LEXIS 11911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Ethel Danzig, J.), entered May 19, 1989, denying second third-party defendant Champion Pools Incorporated’s motion for summary judgment dismissing the complaint of second third-party plaintiff Jet-Line Products of L. L, Inc., unanimously affirmed, without costs.

Plaintiff commenced an action against numerous defendants, including second third-party plaintiff Jet-Line Products of L. I. (JLP), a wholesale distributor of swimming pools and equipment, to recover damages for personal injuries allegedly sustained on September 3, 1979, when she allegedly dove into a swimming pool at the Allegretta Motel in Hampton Bays, New York, at 5:00 a.m. JLP commenced its second third-party action against Champion Pools Incorporated (Champion), a supplier of components for the subject swimming pool, and thereafter Champion moved for summary judgment to dismiss JLP’s complaint on the ground it had not designed, manufactured, nor installed the pool’s vinyl liner, to which plaintiff referred in her pleadings as being defective and a possible cause of the accident.

Our review of the record reveals that Champion’s motion for summary judgment was properly denied as it failed to establish its defense sufficiently to warrant the court to direct judgment in its favor. (See, Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967.) Material issues of fact exist concerning whether the vinyl liner, alone, was the proximate cause of the accident, or whether some design or manufacturing flaw in the pool, some of whose components were supplied by Champion, contributed to the event. Concur—Kupferman, J. P., Ross, Carro, Asch and Ellerin, JJ.