Infante v. Montgomery Ward & Co., Inc.
| Decision Date | 24 July 1975 |
| Citation | 371 N.Y.S.2d 500,49 A.D.2d 72 |
| Parties | , 17 UCC Rep.Serv. 788 Edith INFANTE et al., Respondents, v. MONTGOMERY WARD & CO., INC., et al., Defendants nd Third-Party Plaintiffs-Appellants, Dan River, Inc., as Successor to Crystal Springs Textiles, Inc., et al., Defendants, and Third-Party Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Hesson, Ford, Sherwood & Whalen, Albany (Dale M. Thuillez, Albany, of counsel), for Montgomery Ward & Co., Inc., and Harwood Companies, Inc., also known as Harwood Manufacturing Company, appellants.
Donohue, Bohl, Clayton & Komar, Albany (Myron Komar, Albany, of counsel), for Iselin-Jefferson Co., Inc., Successor to Cohn-Miller Co., Inc., appellant.
Bouck, Holloway & Kiernan, Albany (Stephen M. Kiernan, Albany, of counsel), for Dan River, Inc., as Successor to Crystal Springs Textiles, Inc., respondent.
Before HERLIHY, P.J., and SWEENEY, KANE, MAIN and LARKIN, JJ.
The main action is pending in the Supreme Court, County of Greene. The main action is for personal injuries and derivative losses as a result of the plaintiff, Edith Infante, allegedly being burned on April 19, 1969, when pajamas she was wearing caught fire. The complaint further alleges that the pajamas were purchased by the plaintiffs from defendant Montgomery Ward (hereinafter Wards), prior to March 31, 1969, and further that Wards purchased the pajamas from defendant Harwood Companies, Inc. also known as Harwood Manufacturing Co. (hereinafter Harwood Co.) who manufactured them with fabric manufactured by defendant Dan River, Inc. (hereinafter Dan River) as successor to Woodside Mills, processed by Dan River, as successor to Crystal Springs Textile and shipped by Dan River as successor to Crystal Springs Textile upon the directions of defendant Iselin-Jefferson, Inc. (hereinafter Iselin Co.) as successor to Cohn-Miller Co., defendant, to Harwood Co.
The plaintiffs' summonses and complaints in two actions naming Dan River as a defendant were served on Dan River on August 3, 1973 and October 24, 1973. This was after the running of the three-year Statute of Limitations (CPLR 214) for negligence causes of action and after the running of the four-year Statute of Limitations for breach of warranty causes of action (Uniform Commercial Code, § 2--725). The defendants Wards and Harwood Co. each cross-claimed against Dan River alleging two causes of action that the trial court denominated as one being based upon warranty and the second seeking indemnification on account of the negligence claim. Additionally, defendant Iselin, on August 3, 1973, commenced a third-party action against Dan River in which recovery was sought against Dan River, according to the trial court (1) on account of the breach of an alleged guarantee by Dan River to Iselin under the Flammable Fabrics Act (U.S.Code, tit. 15, §§ 1192, 1193) and (2) under a further cause of action for indemnification based upon negligence or breach of warranty or both. Dan River moved to dismiss the complaint as to it on the ground that plaintiffs' causes of action in negligence and those for breach of warranty were barred by the applicable three and four-year Statute of Limitations. Dan River also moved to dismiss as to it the first cross-claim of defendant Wards as barred by the four-year Statute of Limitations for breach of warranty. Further Dan River moved to dismiss as to it the first cause of action alleged in defendant Iselin's third-party complaint as barred by the four-year Statute of Limitations for breach of warranty causes of action. Lastly, Dan River moved to dismiss as to it that portion of the additional cause of action (indemnification) as barred by the four-year breach of warranty Statute of Limitations. The trial court, citing Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207, granted the motions. Defend...
To continue reading
Request your trial
-
Chandler v. Northwest Engineering Co.
...par. 1401.09) or finally, seek indemnity from the manufacturer based upon strict products liability (see Infante v. Montgomery Ward & Co., 49 A.D.2d 72, 75, 371 N.Y.S.2d 500)." As stated in Nickel v. Hyster Co., 97 Misc.2d 770, 771, 412 N.Y.S.2d "Although section 402 A uses the specific ter......
-
John R. Dudley Const., Inc. v. Drott Mfg. Co.
...A.D.2d 476, 478-479, 375 N.Y.S.2d 655, 657-658, aff'd 41 N.Y.2d 1100, 396 N.Y.S.2d 357, 364 N.E.2d 1129; Infante v. Montgomery Ward & Co., 49 A.D.2d 72, 74-75, 371 N.Y.S.2d 500, 501-502; Accord, Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965); Hiigel v. General M......
-
Mead v. Warner Pruyn Division, Finch Pruyn Sales, Inc.
...P 1401.09) or finally, seek indemnity from the manufacturer based upon strict products liability (see Infante v. Montgomery Ward & Co., 49 A.D.2d 72, 75, 371 N.Y.S.2d 500, 502). The order should be affirmed, with costs to Order affirmed, with costs to plaintiffs. GREENBLOTT, J. P., and SWEE......
-
Kirby v. Rouselle Corp.
...par. 1401.09) or finally, seek indemnity from the manufacturer based upon strict products liability (see Infante v. Montgomery Ward & Co., 49 A.D.2d 72, 75, 371 N.Y.S.2d 500)." As stated in Nickel v. Hyster Co., 97 Misc.2d 770, 771, 412 N.Y.S.2d "Although section 402 A uses the specific ter......