Coley v. Michelin Tire Corp.

• Decision Date: 21 February 1984
• Citation: 472 N.Y.S.2d 125,99 A.D.2d 795
• Parties: Hollis B. COLEY, et al., Plaintiffs-Appellants, v. MICHELIN TIRE CORPORATION, Defendant-Respondent; Englewood Tire Distributors, Defendant; Ernie's Townline Service, Defendant-Appellant (and two third-party actions).
• Court: New York Supreme Court — Appellate Division

Page 125

472 N.Y.S.2d 125

99 A.D.2d 795

Hollis B. COLEY, et al., Plaintiffs-Appellants, v. MICHELIN TIRE CORPORATION, Defendant-Respondent Englewood Tire Distributors, Defendant Ernie's Townline Service, Defendant-Appellant (and two third-party actions).

Supreme Court, Appellate Division Second Department.

Feb. 21, 1984.

Lipsig, Sullivan & Liapakis, P.C., New York City (Harry H. Lipsig, Jay W. Dankner, Emilio Nunez and Cheryl R. Eisberg, New York City, of counsel), for plaintiffs-appellants.

Babchak, Daly & Lavery, Ossining (William J. Daly and Hugh A. Lavery, Ossining, of counsel), for defendant-appellant.

Sichol & Hicks, P.C., Suffern (John M. Kenney, Garden City, of counsel, William R. Sichol, Jr. and Judith Almgren Ferry, Suffern, on the brief), for defendant-respondent.

Before O'CONNOR, J.P., and WEINSTEIN, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., predicated upon theories of negligence, products liability and breach of warranties, (1) plaintiffs and defendant Ernie's Townline Service appeal, as limited by their briefs, from so much of an order of the Supreme Court, dated November 23, 1982 and entered in Rockland County, as granted those branches of defendant Michelin Tire Corporation's motion for summary judgment which sought dismissal of plaintiffs' amended complaint and defendant Ernie's Townline Service's cross claim as against it; and (2) plaintiffs appeal, as limited by their brief, from so much of an order of the same court dated January 28, 1983, as, upon reargument, reconsideration and renewal with respect to them, adhered to its original determination.

Plaintiffs' appeal from the order dated November 23, 1982, dismissed. With respect to plaintiffs, that order was superseded by the order dated January 28, 1983, made upon reargument, reconsideration and renewal.

On defendant Ernie's Townline Service's appeal, order dated November 23, 1982 reversed insofar as appealed from, and that branch of Michelin Tire Corporation's motion which sought dismissal of Ernie's Townline Service's cross claim against it is denied.

Order dated January 28, 1983 reversed insofar as appealed from, so much of the order dated November 23, 1982 as granted that branch of Michelin Tire Corporation's motion for summary judgment which sought dismissal of plaintiffs' amended complaint as against it vacated, and that branch of the motion is denied.

Appellants appearing separately and filing separate briefs are awarded one bill of costs payable by Michelin Tire Corporation.

Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact (see, e.g., Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068; Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 344 N.Y.S.2d 925, 298 N.E.2d 96). Defendant Michelin's motion for summary judgment, which was made on the ground that plaintiffs did not set forth the nature of the alleged defect in the tire, was improperly granted. To establish a cause of action sounding in strict products liability, a plaintiff is not required to prove the specific defect, especially in a product of a complicated...