Peterson v. Spartan Industries, Inc., SERV-WELL

• Decision Date: 26 September 1978
• Docket Number: SERV-WELL
• Citation: 64 A.D.2d 958,408 N.Y.S.2d 794
• Parties: Joseph PETERSON and Gladys N. Peterson, Plaintiffs-Respondents, v. SPARTAN INDUSTRIES, INC., E. J. Korvette, Inc., Guard All Chemical Company, Inc., Garland Electric Sales Corp., Noma Lites Corp., Defendants-Appellants, and Earnest Paper Products, Inc. and Arakawa Press Works, Ltd., Defendants. SPARTAN INDUSTRIES, INC., formerly known as E. J. Korvette, Inc. and operating as E. J. Korvette, Third-Party Plaintiff, v. NOMA LITES CORP., Ward Baking Co. (Noma Lites Division), Ward Foods, Inc. (Ward Baking Co., Noma Lites Division) and Noma Worldwide, Inc., Third-Party Defendants. SPARTAN INDUSTRIES, INC., formerly known as E. J. Korvette, Inc. and operating as E. J. Korvette, Second Third-Party Plaintiff, v.CHARCOAL CO., INC., Second Third-Party Defendant.CHARCOAL CO., INC., Third Third-Party Plaintiff, v. GUARD ALL CHEMICAL COMPANY, INC., Third Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 794

408 N.Y.S.2d 794

64 A.D.2d 958

Joseph PETERSON and Gladys N. Peterson, Plaintiffs-Respondents, v. SPARTAN INDUSTRIES, INC., E. J. Korvette, Inc., Guard All

Chemical Company, Inc., Garland Electric Sales

Corp., Noma Lites Corp., Defendants-Appellants,

and

Earnest Paper Products, Inc. and Arakawa Press Works, Ltd.,

Defendants.

SPARTAN INDUSTRIES, INC., formerly known as E. J. Korvette, Inc. and operating as E. J. Korvette, Third-Party Plaintiff, v. NOMA LITES CORP., Ward Baking Co. (Noma Lites Division),

Ward Foods, Inc. (Ward Baking Co., Noma Lites

Division) and Noma Worldwide, Inc.,

Third-Party Defendants.

SPARTAN INDUSTRIES, INC., formerly known as E. J. Korvette, Inc. and operating as E. J. Korvette, Second Third-Party Plaintiff, v. SERV-WELL CHARCOAL CO., INC., Second Third-Party Defendant.

SERV-WELL CHARCOAL CO., INC., Third Third-Party Plaintiff, v. GUARD ALL CHEMICAL COMPANY, INC., Third Third-Party Defendant.

Supreme Court, Appellate Division, First Department.

Sept. 26, 1978.

C. F. McGuire, New York City, for plaintiffs-respondents.

W. F. Larkin, B. Mandelker, J. D. Ahearn, New York City, for defendants-appellants.

Before KUPFERMAN, J. P., and EVANS, FEIN, LYNCH and SANDLER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered October 21, 1977, which granted plaintiffs' motion to increase their ad damnum clause from $500,000 to $2 million, in an action in negligence, breach of warranty and strict products liability, unanimously reversed, on the law on the facts, and in the exercise of discretion, with one bill of $40 costs and disbursements of this appeal to the defendants-appellants and the motion denied.

On July 27, 1967, the plaintiff Joseph Peterson sustained severe multiple burns when engulfed in flames as a result of fuel escaping from an allegedly defective garden torch.

A summons and complaint, seeking $500,000 in damages for the plaintiff Joseph Peterson and a separate sum for loss of services on behalf of his wife, were served in June of 1970. Thereafter, issue was joined in January of 1971, a bill of particulars served on April 22, 1971 and a note of issue served and filed in August 1971. In December of 1973, plaintiff served and filed a statement of readiness and placed the case on the calendar.

On October 21, 1976, plaintiff served a new bill of particulars in support of a motion to serve an amended complaint. That motion was made on October 29, 1976 and granted on January 11, 1977. The amended...