Berton Plastics, Inc. v. Chemung Fiberglass Products, Inc., 1

• Decision Date: 21 July 1983
• Docket Number: No. 3,DURA-BILT,No. 2,No. 4,No. 1,1,2,3,4
• Parties: BERTON PLASTICS, INC., Appellant, v. CHEMUNG FIBERGLASS PRODUCTS, INC., et al., Respondents. (Action) CHEMUNG FIBERGLASS PRODUCTS, INC., Respondent, v. BERTON PLASTICS, INC., Appellant, and Witco Chemical Corporation, Respondent. (Action)PRODUCTS, INC., Respondent, v. CHEMUNG FIBERGLASS PRODUCTS, INC., Appellant. (Action) CHEMUNG FIBERGLASS PRODUCTS, INC., Third-Party Plaintiff-Respondent, v. BERTON PLASTICS, INC., Third-Party Defendant-Appellant, and Witco Chemical Corporation, Third-Party Defendant. (Action)
• Court: New York Supreme Court — Appellate Division

Page 499

466 N.Y.S.2d 499

96 A.D.2d 665

BERTON PLASTICS, INC., Appellant, v. CHEMUNG FIBERGLASS PRODUCTS, INC., et al., Respondents.

(Action No. 1.)

CHEMUNG FIBERGLASS PRODUCTS, INC., Respondent, v. BERTON PLASTICS, INC., Appellant, and Witco Chemical Corporation, Respondent. (Action No. 2.)

DURA-BILT PRODUCTS, INC., Respondent, v. CHEMUNG FIBERGLASS PRODUCTS, INC., Appellant. (Action No. 3.)

CHEMUNG FIBERGLASS PRODUCTS, INC., Third-Party Plaintiff-Respondent, v. BERTON PLASTICS, INC., Third-Party Defendant-Appellant, and Witco Chemical Corporation, Third-Party Defendant. (Action No. 4.)

Supreme Court, Appellate Division,

Third Department.

July 21, 1983.

Culley, Marks, Corbett, Tanenbaum, Reifsteck & Potter, Rochester (Merle M. Troeger, Rochester, of counsel), for appellant Berton Plastics, Inc., in Actions 2 and 4.

Sayles, Evans, Brayton, Palmer & Tifft, Elmira (Edward B. Hoffman, Elmira, of counsel), for appellant Chemung Fiberglass Products, Inc. in Action 3 and for respondent in Actions 1, 2 and 4.

Buck, Gleckner, Danaher & Harpending, Elmira (M. Joseph Danaher, Elmira, of counsel), for respondent, Dura-Bilt Products, Inc. in Action 3.

Before MAHONEY, P.J., and KANE, MAIN, CASEY and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeals (1) in Actions Nos. 1 and 2, from a judgment of the Supreme Court in favor of Chemung Fiberglass Products, Inc., entered April 20, 1982 in Chemung County, upon a verdict rendered at Trial Term, (2) in Actions Nos. 3 and 4, from a resettled judgment of said court in favor of Dura-Bilt Products, Inc., entered June 21, 1982 in Chemung County, upon a verdict rendered at Trial Term, and (3) from an order of the Supreme Court at Special Term, entered June 21, 1982 in Chemung County, which, inter alia, denied a motion by Berton Plastics, Inc. to vacate the judgment entered April 20, 1982.

Early in 1978, Dura-Bilt Products, Inc. (hereinafter Dura-Bilt), which produces accessories for the mobile home industry, entered into an agreement with Chemung Fiberglass Products, Inc. (hereinafter Chemung) whereby Chemung agreed to manufacture and sell to Dura-Bilt certain mobile home accessories consisting of entrance steps, platforms and porch decks. Materials used by Chemung in the manufacturing of these accessories were purchased from Berton Plastics, Inc. (hereinafter Berton) and Witco Chemical Corporation (hereinafter Witco), and it subsequently developed that the accessories as manufactured were defective in that blisters developed thereon with resultant deterioration.

As a consequence of the defective nature of the products, the present actions were instituted. Dura-Bilt commenced an action against Chemung based upon breach of contract, breach of implied warranty of fitness for a particular purpose, negligence and strict products liability, and Chemung in turn brought an action against Berton and Witco for its damages and also a third-party action against Berton and Witco for apportionment of any damages received by Dura-Bilt. For its part, Berton commenced an action against Chemung for the price of materials for which Chemung refused to pay because the materials were allegedly defective.

Following a...