Opinion
CA 03-00893.
November 21, 2003.
Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered September 6, 2002, which, inter alia, denied the motion of defendant Hector's Hardware Paint Co., Inc. for summary judgment dismissing the complaint against it.
Law Offices of John Quackenbush, Buffalo (Michael C. Lancer of Counsel), for Defendant-Appellant.
Lipsitz, Green, Fahringer, Roll, Salisbury Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiffs-Respondents.
Before: Present: Pigott, Jr., P.J., Green, Scudder, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum: Plaintiffs commenced this action to recover for injuries sustained by plaintiff Juan Torres in an accident involving a table saw. The complaint asserts causes of action sounding in strict products liability, negligence, and breach of express and implied warranties. Supreme Court properly denied the motion of Hector's Hardware Paint Co., Inc. (defendant), the retail seller of the saw, for summary judgment dismissing the complaint against it. Defendant did not meet its burden of establishing its entitlement to judgment as a matter of law on the issue whether the saw was unreasonably dangerous for its intended use as a result of an inadequate blade guard ( see generally Voss v. Black Decker Mfg. Co., 59 N.Y.2d 102, 108-109; Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 478-479). In any event, plaintiffs raised a triable question of fact with respect to that issue ( see Ganter v. Makita U.S.A, 291 A.D.2d 847, 847-848; Chien Hoang v. ICM Corp., 285 A.D.2d 971, 972-973; Sanchez v. Otto Martin Maschinenbau GmbH Co., 281 A.D.2d 284, 285). We further conclude that there is a triable issue of fact concerning whether defendant breached its duty to warn ( see Ganter, 291 A.D.2d at 848; Harrigan v. Super Prods. Corp., 237 A.D.2d 882, 882-883; Smith v. Minster Mach. Co., 233 A.D.2d 892, 894).