Sparling v. Podzielinski

• Decision Date: 12 January 1962
• Citation: 223 N.Y.S.2d 10,32 Misc.2d 227
• Court: New York Supreme Court
• Parties: Glenn L. SPARLING, Plaintiff, v. Leonard J. PODZIELINSKI, Stanley J. Podzielinski, and Adolph S. Podzielinski, individually and as co-partners d/b/a Fleet Marine Sales & Service; Berkley Company and Roberts Hardware Co., Inc., Defendants.

Page 10

223 N.Y.S.2d 10

32 Misc.2d 227

Glenn L. SPARLING, Plaintiff, v. Leonard J. PODZIELINSKI, Stanley J. Podzielinski, and Adolph S. Podzielinski, individually and as co-partners d/b/a Fleet Marine Sales & Service; Berkley Company and Roberts Hardware Co., Inc., Defendants.

Supreme Court, Special Term for Motions, Oneida County.

Jan. 12, 1962.

Williams & Ray, Utica, for plaintiff.

Ferris, Hughes, Dorrance & Groben, Utica, for defendant Roberts Hardware Co. Inc.

Foley, Callanen & Foley, Utica, for defendants Podzielinski.

FRANK DEL VECCHIO, Justice.

This is a motion for summary judgment in an action for personal injuries sustained by reason of an alleged defective water ski tow rope.

Plaintiff brought the action against the partners operating Fleet Marine Sales & Service, from which he acquired the rope, against Berkley Co., the alleged manufacturer, and against the movant, Roberts Hardware Co., Inc., the wholesaler and jobber.

The complaint sets forth three causes of action against Roberts: one (the first cause of action) based on an express warranty, one (the third cause of action) based on negligence, and one (the sixth cause of action) based on an implied warranty.

The present motion which is a drastic remedy, disposing of causes of actions on pleadings and affidavits, should not be granted where there is any doubt as to the existence of justiciable questions of fact. (Braun v. Carey, 280 App.Div. 1019, 116 N.Y.S.2d 857) But when it clearly appears that no material and triable issue of fact is presented it must be granted. (Di Menna & Sons, Inc. v. City of New York, 301 N.Y. 118, 92 N.E.2d 918)

A motion for summary judgment may be supported by affidavits, by a copy of the pleadings and by other available proof such as depositions and written admissions, including examinations before trial. (Rule 113(2), Rules of Civil Practice; Baxter v. Institutional Shares, Ltd., 281 App.Div. 892, 119 N.Y.S.2d 625; Outwater v. Miller, 3 Misc.2d 47, 51, 52, 153 N.Y.S.2d 708, 155 N.Y.S.2d 357, 359, 360) Upon an examination before trial plaintiff stated that the rope in question--which was in a sealed plastic bag--was given to him by the defendant Fleet Marine Sales at the time he purchased a pair of water skis; he also stated that at the time of the purchase he had no contact with anyone from the defendant Roberts.

In view of this testimony, it is evident that there could be no recovery against the movant on either the express or the implied warranty theories. The Court of Appeals long ago laid down the requirement of privity of contract between the parties for an action for breach of warranty. (Turner v. Edison Storage Battery Co., 248 N.Y. 73, 161 N.E. 423), which it very recently reiterated in Greenberg v. Lorenz, 9 N.Y.2d 195, p. 198, 213 N.Y.S.2d 39, p. 41, 173 N.E.2d 773, p. 774, stating:

'There can be no warranty, express or implied, without privity of contract.'

In the Greenberg case the Court recognized the harshness of the rule which limited actions for breach of warranty arising from the purchase of unwholesome food to the member of the family actually making the purchase and, to extend the right of action to any other member injured as the result thereof, laid down the rule that 'at least as to food and household goods, the presumption should be that the purchase was made for all the members of the household.' (p. 200, 213 N.Y.S.2d, p. 42, 173 N.E.2d, p. 776) It did not however indicate any intention to vary the privity requirement--so clearly stated--in circumstances other than those there presented. Until the Court of Appeals sees fit to change the rule in other than food cases, this Court is bound to hold that, in actions like the present one, without privity of contract between the parties there can be no action on an express or implied warranty.

It might also be well to note that plaintiff seeks an extension of the Greenberg rule, not only as to the products involved, but also as to the persons upon whom liability may be imposed. Unlike Greenberg, which was concerned only with the liability of the retail seller and which found a relationship between the retailer and the members of the buyer's family through a presumed agency, plaintiff is seeking to establish a liability for warranty on the part of the remote seller, the wholesaler, as to whom it is difficult to see how the Greenberg case has any conceivable application.

It is the conclusion of the Court that, as the law of this jurisdiction now stands, plaintiff is barred by lack of privity from recovering against the movant Roberts on either of the warranties alleged in the complaint.

Turning to the cause of action stated in negligence, there is no allegation that the defendant Roberts knew or had reason to know of the claimed defective condition of the ski tow rope supplied by it to Marine Fleet Sales and thence delivered to plaintiff. The only acts of negligence set forth are that Roberts failed to inspect or test the rope which could cause injury because of its defective design and failed to warn plaintiff of its condition.

Upon the examination before trial it appeared that all of the ski tow ropes purchased by Roberts came from two sources; the supplier of the rope ultimately passed on to plaintiff had filled two or three orders for Roberts before the order placed shortly before plaintiff's purchase from Fleet Marine Sales. According to Roberts' buyer and manager of the sporting goods department, during his six years in that position he had purchased four to five thousand ropes, about twenty-eight hundred of which had come from the manufacturer of the rope used by plaintiff at the time of his injury. It also appeared that the ski ropes were received by Roberts from the manufacturer in sealed plastic bags and were delivered to retailers in the same condition. They were not opened, removed or tested by Roberts and it had no part in either the...