Potsdam Welding & Mach. Co., Inc. v. Neptune Microfloc, Inc.

• Decision Date: 12 May 1977
• Citation: 57 A.D.2d 993,394 N.Y.S.2d 744
• Parties: POTSDAM WELDING AND MACHINE CO., INC., Respondent, v. NEPTUNE MICROFLOC, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 744

394 N.Y.S.2d 744

57 A.D.2d 993

POTSDAM WELDING AND MACHINE CO., INC., Respondent, v. NEPTUNE MICROFLOC, INC., Appellant.

Supreme Court, Appellate Division, Third Department.

May 12, 1977.

Vincent F. Kirsch, Massena, for appellant.

Smith, Sovik, Kendrick, McAuliffe & Schwarzer, Syracuse (Martin F. Kendrick, Syracuse, of counsel, for respondent.

Before KOREMAN, P. J., and SWEENEY, KANE, MAHONEY and LARKIN, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered October 21, 1976 in St. Lawrence County, which denied defendant's motion to dismiss the third and fourth causes of action in plaintiff's complaint and granted, in part, plaintiff's cross-motion to strike certain affirmative defenses from defendant's answer.

In August, 1971 plaintiff entered into a subcontract to do certain metal work in the construction of a water filtration plant in the Village of Canton. The defendant had supplied certain filtration equipment, including plastic tube settlers, for use in the plant and had supervised the installation of this equipment. On October 16, 1972, while the plaintiff's employees were doing welding work, a spark from one of the welding torches fell upon one of the plastic tube settlers, resulting in a fire which damaged a substantial portion of the plant. Plaintiff's insurer ultimately paid $350,000 in settlement of various subrogated actions and claims and, as subrogee under the terms of its policy, commenced this action in plaintiff's name for indemnification. Defendant appeals from a denial of its motion to dismiss plaintiff's third and fourth causes of action, for breach of warranty and strict products liability, respectively, and from the granting of plaintiff's cross-motion to dismiss certain of its affirmative defenses.

Defendant argues that Special Term erred in refusing to dismiss plaintiff's fourth cause of action upon the ground that strict products liability does not apply where both parties are "industrial/commercial" specialists and only property losses are alleged. We find no basis in case law or reasons of policy for defendant's position.

In Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622, 628; the court stated that, provided three specified conditions were met, "under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury" (emphasis supplied) (id. at 342, 345 N.Y.S.2d at 469, 298 N.E.2d at 628; see also, Micallef v. Miehle Co., Div. of Miehle-Gross Dexter, 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571). It is apparent that in holding the manufacturer liable to "any person" injured "or damaged", the Court of Appeals has made no distinction between ordinary consumers and "commercial/industrial specialists" or between personal injuries and property damage. We find no New York cases in support of defendant's theory. To the contrary, in Infante v. Montgomery Ward & Co., 49 A.D.2d 72, 371 N.Y.S.2d 500, this court authorized three entities of the type defendant characterizes as "commercial/industrial specialists" to serve amended pleadings upon a manufacturer seeking indemnification based upon strict products liability. In All-O-Matic Ind. v. Southern Speciality Paper Co., 49 A.D.2d 935, 374 N.Y.S.2d 331, an action for property damages only, we directed a new trial on all causes of action, including one for strict products liability, asserted by a manufacturer of products used in plaintiff's process which allegedly ignited spontaneously and damaged goods in plaintiff's warehouse. Although and arguments posited by the defendant were not advanced in the Infante and...