Berzon v. Don Allen Motors, Inc.
| Decision Date | 14 January 1965 |
| Citation | 256 N.Y.S.2d 643,23 A.D.2d 530 |
| Parties | Lester BERZON and Norma Berzon, Respondents, v. DON ALLEN MOTORS, INC., Appellant, General Motors Corporation, City of Buffalo and Mario Sini, Defendants. |
| Court | New York Supreme Court — Appellate Division |
Miles, Cochrane, Grosse, Rossetti & Lord, Buffalo, for appellant (Victor A. Rossetti, Buffalo, of counsel).
Brennan, Mintz, Birzon & McGowan, Paul Ivan Birzon, Buffalo, for respondents.
Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HENRY and NOONAN, JJ.
Plaintiffs were passengers in a car which was struck by a truck manufactured by defendant General Motors Corporation and sold to detfendant City of Buffalo by defendant-appellant Don Allen Motors, Inc. The complaint alleges six causes of action. We are concerned on this appeal only with the fifth and sixth causes of action in which recovery is sought from appellant for breach of implied warranty relating to the truck's braking mechanism. Special Term denied appellant's motion to dismiss these two causes of action citing Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 as authority for sustaining their sufficiency. The principle enunciated in Goldberg created liability on the part of the vendor (appellant) 'for breach of law-implied warranties to the persons whose use is contemplated' (pp. 436, 437, 240 N.Y.S.2d p. 595, 191 N.E.2d p. 83). In Thomas v. Leary, 15 A.D.2d 438, 225 N.Y.S.2d 137 we held that an employee of the purchaser would be such a contemplated user and should be protected under the implied warranty doctrine as 'a logical and progressive step' (p. 440, 225 N.Y.S.2d p. 139) in the application of the Goldberg doctrine. To extend Goldberg further to include bystanders and strangers, such as the plaintiffs, would be such a radical departure from established law that if it is to be accomplished it should be done by legislative action and not judicial pronouncement. While appellant's notice of motion refers to a dismissal of the complaint it is clear that it sought only the dismissal of the two causes of action 'based on a breach of implied warranty'. The order denying the motion is even more confusing in that it refers to 'action No. 1 against Don Allen Motors, Inc'. It is clear from Special Term's memorandum decision, the briefs of the parties and the argument that the issue was limited to the implied warranty causes of action numbered fifth and sixth. Our reversal of the...
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...the growing minority of states which have espoused a species of strict products liability, we can only cite Berzon v. Don Allen Motors, Inc., 23 A.D.2d 530, 256 N.Y.S.2d 643 (1965), and the dissenting opinion of O'Hara, J., in Piercefield v. Remington Arms Company, 375 Mich. 85, 133 N.W.2d ......
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