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State v. Melville

29 A.D.2d 709 Court N.Y. App. Div. Decision date 1968-01-12 English

Delivered by Reynolds, J.

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p. 709
State of New York, Appellant-Respondent, v. William J. Melville, Respondent-Appellant and Third-Party Plaintiff-Appellant-Respondent. Orange County Plumbing Supply Co., Inc., Third-Party Defendant-Respondent-Appellant.

Appeal and cross appeals from an order of the Supreme Court, Albany County, denying a motion and cross motions for summary judgment. The affidavit submitted by the State of an employee of the boiler manufacturer indicating that the cause of the break was due to a defect in manufacture does not preclude the possibility of other concurring causes and in any event is not alone conclusive on the issue involved. Nor do we find advanced on the present record arguments which would mandate summary judgment in favor of any litigant. Accordingly, Special Term correctly determined that factual issues exist which require a plenary trial. Order affirmed, without costs. Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.