Assing v. United Rubber Supply Co., Inc.

• Decision Date: 20 January 1987
• Citation: 126 A.D.2d 590,511 N.Y.S.2d 31
• Parties: George ASSING, et al., Respondents, v. UNITED RUBBER SUPPLY COMPANY, INC., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 31

511 N.Y.S.2d 31

126 A.D.2d 590

George ASSING, et al., Respondents, v. UNITED RUBBER SUPPLY COMPANY, INC., Appellant, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Jan. 20, 1987.

Morris, Graham, Stephens & McMorrow, Westbury (Francis J. McNamara, of counsel), for appellant.

Aaron J. Broder, New York City (David S. Gould, of counsel), for respondents.

Before THOMPSON, J.P., and BRACKEN, LAWRENCE and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., based on negligence, breach of warranty and strict products liability, the defendant United Rubber Supply Company, Inc. (hereinafter United) appeals from an order of the Supreme Court, Kings County (Scholnick, J.), dated October 11, 1985, which, inter alia, denied its motion for summary judgment dismissing the complaint as against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the plaintiffs' cross motion to compel United to submit to an examination before trial is denied as academic, and the complaint is dismissed as against United.

It is well settled that on a motion for summary judgment, the court's function is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387, rearg. denied 3 N.Y.2d 941). Nevertheless, the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated (see, Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105, affd. 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282; cf. Stanita Realty Corp. v. Hughes Aircraft Co., 116 A.D.2d 567, 497 N.Y.S.2d 423). If the issue claimed to exist is not genuine, but feigned and therefore there is nothing to be resolved at trial, "the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated" (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853). Our review of the record in this case discloses an absence of a genuine issue of fact with regard to the plaintiffs' contention that United manufactured, supplied or distributed an allegedly defective hose which caused the injuries of the plaintiffs George Assing and Ruthven Collette. As conceded by the plaintiffs at oral argument, the only evidence allegedly connecting this defendant to the hose was an undated United shipping label, which contained a purchase order number. This label was allegedly removed from a box in the receiving department...