Opinion
January 31, 1994
Appeal from the Supreme Court, Nassau County (O'Brien, J.).
Ordered that the appeal from so much of the order as dismissed the fourth-party complaint is dismissed; and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, the motion of the third-party defendant and fourth-party plaintiff William's Cyclery, Inc., for summary judgment is denied, and the third-party complaint is reinstated; and it is further,
Ordered that the appellant is awarded one bill of costs, payable by the third-party defendant fourth-party plaintiff-respondent William's Cyclery, Inc.
The appeal taken by the defendant third-party plaintiff Panasonic Industrial Company, a division of Matsushita Electric Corporation of America (hereinafter MECA) from so much of the order as dismissed the fourth-party complaint of William's Cyclery, Inc. (hereinafter the Cyclery) against the fourth-party defendant Michael Shaw must be dismissed as MECA has not pleaded its own claim against Shaw and is not aggrieved by the dismissal of the claim pleaded by the Cyclery (see, CPLR 5511; see also, Board of Mgrs. v. Schorr Bros. Dev. Corp., 182 A.D.2d 664; Lackner v. Roth, 166 A.D.2d 686; Nunez v. Travelers Ins. Co., 139 A.D.2d 712; Fiore v. MCT Constr. Corp., 112 A.D.2d 265; Robert T. Donaldson, Inc. v. Aggregate Surfacing Corp., 47 A.D.2d 852). The one party aggrieved by this aspect of the order, i.e., the Cyclery, has not appealed and is thus not entitled to relief from this Court (see, Hecht v. City of New York, 60 N.Y.2d 57). The Supreme Court is, of course, free to entertain a motion for leave to reargue, for leave to amend or to serve supplemental pleadings, or for any other relief which would be appropriate in light of our decision herein.
The plaintiff was injured while operating a "Panasonic Mountain Cat 5500 bicycle". This bicycle had been manufactured by the National Bicycle Company, which is not a party to the present action.
The evidence tends to show that such bicycles were typically shipped by the manufacturer in an unassembled condition to the defendant third-party plaintiff MECA and then warehoused in New Jersey. The bicycles would then be reshipped to various retail outlets, including one maintained by the third-party defendant and fourth-party plaintiff, the Cyclery.
On August 26, 1989, one such bicycle was sold by the Cyclery to the fourth-party defendant Michael Shaw either for the sum of $321 or for the sum of $370. Mr. Shaw removed the bicycle from its carton and assembled it. He then delivered the bicycle to the plaintiff, who was injured while riding it 30 or 45 minutes later.
The Supreme Court granted summary judgment in favor of the Cyclery on the basis of its finding that Shaw "operated de facto as the retailer". The court also found that the Cyclery "did not assemble [the bicycle], instruct plaintiff on its use and had no contact with plaintiff in any respect". For these reasons, the Supreme Court dismissed the third-party complaint against the Cyclery, as well as the Cyclery's own fourth-party complaint against Shaw. We reverse so much of this order as aggrieves the appellant MECA.
The absence of proof that the Cyclery assembled the bicycle or instructed the plaintiff in its use furnishes no basis for the granting of summary judgment; if it did, then summary judgment would be warranted in favor of MECA as well. Similarly, the fact that the plaintiff had no dealings with the Cyclery (just as he had no dealings with MECA) is irrelevant. "In [Codling v Paglia, 32 N.Y.2d 330] the Court of Appeals put to rest forever the need for privity and proof of specific acts of negligence in an action alleging injury caused by a defective product" (Baker v. St. Agnes Hosp., 70 A.D.2d 400, 404; see also, Winckel v Atlantic Rentals Sales, 159 A.D.2d 124; Key Intl. Mfg. v Morse/Diesel, Inc., 142 A.D.2d 448). Distributors of defective products, as well as retailers and manufacturers, are subject to potential strict products liability (e.g., Denkensohn v Davenport, 144 A.D.2d 58, affd 75 N.Y.2d 25; Johnson v. Johnson Chem. Co., 183 A.D.2d 64; Billsborrow v. Dow Chem., 177 A.D.2d 7). If the Cyclery was not a retailer, then it was clearly a distributor of the allegedly defective bicycle so as to fall within the scope of this rule. Bracken, J.P., Balletta, Copertino and Santucci, JJ., concur.