Opinion
March 7, 1961
Baer, Marks, Friedman Berliner ( Leonard L. Berliner and Stephen F. Selig of counsel), for Firestone Tire Rubber Co., defendant.
Emanuel N. Frankel and Jerome Edelman for plaintiffs.
Motion by defendant Firestone Tire and Rubber Co. (hereinafter called Firestone) for an order dismissing each of the five causes of action alleged in the complaint for legal insufficiency or, in the alternative, requiring plaintiffs to serve an amended complaint separately stating and numbering the causes of action.
The complaint contains five causes of action, each alleged against all of the defendants. The first is by the plaintiff Martin Levitt for personal injuries, the second by his wife for personal injuries, the third by Martin for loss of services, the fourth by Martin for breach of warranty and the fifth by Martin for property damage.
The gist of the negligence actions is that on July 5, 1960 plaintiff Martin bought a Ford station wagon from the defendant Hicksville Motors, Inc. (hereinafter called Hicksville), that said car came equipped with Firestone tires, that on July 23, 1960, while plaintiffs were riding on the Pennsylvania Turnpike, the right front tire blew out, that as a result both plaintiffs were injured, that Firestone knew that the tire would contain air under great pressure, and that it would be subjected to great stresses, that in view of this knowledge Firestone was under a duty to inspect and test said tire to render it suitable for ordinary use, that the tire contained a latent defect, and that Firestone failed to inspect and test the tire. As a matter of pleading the four causes of action for negligence are sufficient. ( Howard Stores Corp. v. Pope, 1 N.Y.2d 110.)
Firestone argues, however, that since the complaint also alleges that Ford and Hicksville were also negligent, that Firestone is therefore "insulated" from liability. This does not follow. Where the negligence of two or more parties is concurrent each is liable. ( De Haen v. Rockwood Sprinkler Co., 258 N.Y. 350. )
The fourth cause of action, based on warranty, is insufficient as to defendant Firestone, since there was no privity between said defendant and the plaintiffs. ( Campo v. Scofield, 301 N.Y. 468, 471.)
The request for alternative relief requiring plaintiffs to separately state and number the causes of action is denied.
Defendant Firestone's motion is, therefore, granted, only to the extent of dismissing the fourth cause of action as to it and in all other respects it is denied.