Majority
p. 759Fourth Department, November, 1993 (November 19, 1993) Thomas Reich et al., Respondents, v Graymills Corporation, Defendant and Third-Party Plaintiff-Respondent. D.A. Griffin Corporation, Third-Party Defendant-Respondent. Thomas Reich et al., Respondents, v Safety Kleen Corporation, Defendant, and A.T. Supply Inc., Appellant. [605 NYS2d 1019]
—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of A.T. Supply, Inc. (A.T. Supply) for summary judgment on its claim for common-law indemnification against defendant Graymills Corporation (Graymills). The record fails to establish, as a matter
p. 760
of law, that A.T. Supply’s potential liability for failure to warn, as the seller of an allegedly defective product, arises solely from its relationship to Graymills, the manufacturer (see generally, Sukljian v Ross & Son Co., 69 NY2d 89 , 95; Voss v Black & Decker Mfg. Co., 59 NY2d 102 , 106-107). Furthermore, failure to warn is essentially a theory of negligence and the drastic remedy of summary judgment is rarely granted (see, Cooley v Carter-Wallace Inc., 102 AD2d 642 , 648). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present — Denman, P. J., Green, Balio, Fallon and Boehm, JJ.
Cases cited
- Sukljian v. Charles Ross & Son Co. 69 NY2d 89 at 95 p. 760
- Voss v. Black & Decker Manufacturing Co. 59 NY2d 102 at 106-107 p. 760
- Cooley v. Carter-Wallace Inc. 102 AD2d 642 at 648 p. 760