Mortka v. K-Mart Corp.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: CASEY
• Citation: Mortka v. K-Mart Corp., 635 N.Y.S.2d 105, 222 A.D.2d 804 (N.Y. App. Div. 1995)
• Decision Date: 07 December 1995
• Docket Number: K-MART
• Parties: Alfred MORTKA et al., Respondents, v.CORPORATION, Appellant.

Page 105

635 N.Y.S.2d 105

222 A.D.2d 804

Alfred MORTKA et al., Respondents, v. K-MART CORPORATION, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 7, 1995.

Carter, Conboy, Case, Blackmore, Napierski & Maloney P.C. (Joseph T. Perkins, of counsel), Albany, for appellant.

Grasso, Rodriguez, Putorti, Grasso & Zyra (Lawrence J. Zyra, of counsel), Schenectady, for respondents.

Before CARDONA, P.J., and WHITE, CASEY, YESAWICH and SPAIN, JJ.

CASEY, Justice.

Appeal from an order of the Supreme Court (Lynch, J.), entered November 9, 1994 in Schenectady County, which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiffs' cross motion to amend the complaint.

Based upon allegations that plaintiff Alfred Mortka was injured by a defective product which he purchased from defendant retailer, plaintiffs commenced this action to recover damages for Mortka's personal injuries and his wife's derivative loss. The complaint sought recovery on the basis of a negligence theory only. After issue was joined and discovery was completed, defendant moved for summary judgment dismissing the complaint on the ground that, as a matter of law, defendant was not negligent. Plaintiffs cross-moved for leave to amend their complaint to add causes of action based upon a breach of warranty theory. Supreme Court denied defendant's motion and granted plaintiffs' cross motion, resulting in this appeal by defendant.

In view of the relationship between a negligence theory and a breach of warranty theory when a consumer is injured by a defective product (see, Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 106, 463 N.Y.S.2d 398, 450 N.E.2d 204), and considering the similar burden of proof imposed upon the consumer under each theory (see, Tardella v. RJR Nabisco, 178 A.D.2d 737, 576 N.Y.S.2d 965), we find no error in Supreme Court's decision to grant plaintiffs leave to amend their complaint to add a breach of...