Fox v. Wyeth Laboratories, Inc. — 129 A.D.2d 611

Majority

p. 611

Catherine Fox, Respondent, v Wyeth Laboratories, Inc., et al., Appellants, et al., Defendants.

In an action to recover damages for personal injuries, the defendants Wyeth Laboratories, Inc., and American Home Products Corp. appeal from an order of the Supreme Court, Kings County (Krausman, J.), dated November 21, 1985, which denied their motion for summary judgment.

Ordered that the order is affirmed, with costs.

The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment, as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case. The failure to make such a showing requires the denial of the motion, regardless of the insufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851 ; Royal v Brooklyn Union Gas Co., 122 AD2d 132 ; Raia Indus. v Young, 124 AD2d 722 ).

p. 612

In the case at bar, the defendants Wyeth Laboratories, Inc., and American Home Products Corp. established that they provided warnings of the side effects suffered by the infant plaintiff after a DTP (diphtheria, tetanus, pertussis) inoculation. However, the evidence submitted failed to establish, as a matter of law, that the warnings were adequate. Therefore, a material issue of fact remains, and summary judgment was properly denied (see, Baker v St. Agnes Hosp., 70 AD2d 400 ; cf., Wolfgruber v Upjohn Co., 72 AD2d 59 , affd 52 NY2d 768 ; Eiser v Feldman, 123 AD2d 388 ). Bracken, J. P., Brown, Niehoff and Kooper, JJ., concur.

Cases cited

Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 p. 611
Royal v. Brooklyn Union Gas Co. 122 AD2d 132 N.Y. App. Div. 1986-07-14 p. 611
Baker v. St. Agnes Hospital 70 AD2d 400 N.Y. App. Div. 1979-10-29 p. 612
Wolfgruber v. Upjohn Co. 72 AD2d 59 N.Y. App. Div. 1979-12-21 p. 612
Wolfgruber v. Upjohn Co. 52 NY2d 768 N.Y. 1980-12-18 p. 612