Majority
p. 498(February 13, 1990) Anthony Betro, Jr., an Infant, by His Mother and Natural Guardian, Patricia Betro, et al., Plaintiffs, v GAC International, Inc., Defendant and Third-Party Plaintiff-Respondent. P. Cain, Third-Party Defendant-Appellant.
We agree with the third-party defendant orthodontist Dr. Cain that the third-party plaintiff, who distributed the dental device which allegedly caused the infant plaintiff’s injury, has failed to come forward with evidentiary facts which show that a triable issue exists as to the allegations of negligence on the part of Dr. Cain (see, Zuckerman v City of New York, 49 NY2d 557 ). The record does not indicate that Dr. Cain was negligent in prescribing the night brace distributed by the third-party
p. 499
plaintiff. Nor could Dr. Cain be held liable under a theory of breach of warranty or products liability. The prescription of the night brace did not constitute a "sale” of the device which is required in order to state a cause of action sounding in products liability and breach of warranty, but was merely a procedure incidental to medical treatment (see, Perlmutter v Beth David Hosp., 308 NY 100 ; Goldfarb v Teitelbaum, 149 AD2d 566 ). Brown, J. P., Rubin, Hooper and Harwood, JJ., concur.
Cases cited
- Zuckerman v. City of New York 49 NY2d 557 p. 498
- Perlmutter v. Beth David Hospital 308 NY 100 p. 499