Kennerly v. Campbell Chain Co.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: Kennerly v. Campbell Chain Co., 519 N.Y.S.2d 839, 133 A.D.2d 669 (N.Y. App. Div. 1987)
• Decision Date: 13 October 1987
• Parties: Willmore KENNERLY, Appellant, v. CAMPBELL CHAIN COMPANY, Campbell Chain Division McGraw-Edison Company, Respondent, et al., Defendant (and a third-party title).

Page 839

519 N.Y.S.2d 839

133 A.D.2d 669

Willmore KENNERLY, Appellant, v. CAMPBELL CHAIN COMPANY, Campbell Chain Division McGraw-Edison Company, Respondent, et al Defendant (and a third-party title).

Supreme Court, Appellate Division Second Department.

Oct. 13, 1987.

Tully & Burns, White Plains (Andrew W. Tully, Jr., of counsel), for appellant.

Herzfeld & Rubin, P.C., New York City (Herbert Rubin, Edward L. Birnbaum, David B. Hamm and Isaac Szpilzinger of counsel), for respondent.

Before THOMPSON, J.P., and WEINSTEIN, RUBIN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries sounding in negligence and breach of implied warranty, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Martin, J.), entered January 28, 1986, as, upon renewal, granted the respondent's motion for summary judgment dismissing the remaining cause of action in the complaint based upon breach of implied warranty.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On its motion for summary judgment dismissing the complaint, the respondent, Campbell Chain Company, Campbell Chain Division McGraw-Edison Company (hereinafter Campbell Chain), met its burden of submitting admissible proof in evidentiary form that it did not sell any automobile "tie-down chains" to the plaintiff's employer within the applicable statutory period of limitation (see, e.g., Weinberg v. Johns-Manville Prods. Corp., 67 A.D.2d 640, 412 N.Y.S.2d 370). No proof was adduced that the allegedly defective "tie-down chain" which caused the plaintiff's injuries was manufactured by Campbell Chain. It was incumbent upon the plaintiff to come forward and present evidence, in evidentiary form, sufficient to create a triable issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). The hearsay letter from a manager of the plaintiff's employer does not suffice to meet this requirement (see, Decker v. County of Albany, 117 A.D.2d 966, 967-968, 499 N.Y.S.2d 277), and in our view, the deficiency in the plaintiff's papers may not be cured by a contention that the facts are within the exclusive knowledge of the movant (cf., Koen v. Carl Co., 70 A.D.2d 695, 416 N.Y.S.2d 396). We reject the plaintiff's contention that summary judgment should have been denied until he had an opportunity to conduct court-ordered depositions. Mere hope that somehow, ...