COLEMAN v. CHESEBRO WHITMAN CO (1999)

In an action to recover damages for personal injuries, etc., the defendant Chesebro-Whitman Co. appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), dated August 28, 1998, as, upon reargument of an order of the same court dated March 31, 1998, denied those branches of its motion which were for summary judgment dismissing the causes of action to recover damages for negligence and strict products liability insofar as asserted against it.   The plaintiffs appeal from the order dated March 31, 1998.

ORDERED that the appeal by the plaintiffs from the order dated March 31, 1998, is dismissed on the ground that the order is superseded by the order dated August 28, 1998;  and it is further,

ORDERED that the order is modified by deleting the provision thereof denying that branch of the appellant's motion which was for summary judgment dismissing the cause of action to recover damages for strict products liability based on a failure to warn, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed insofar as appealed from;  and it is further,

ORDERED that the plaintiffs are awarded one bill of costs.

 The Supreme Court properly concluded that there remained a triable issue of fact as to whether there was a design or manufacturing defect in the subject ladder (see, Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 450 N.E.2d 204;  Micallef v. Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571;  Bolm v. Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644, 305 N.E.2d 769).

 However, the appellant was entitled to summary judgment dismissing the cause of action to recover damages for strict products liability based on a failure to warn where the plaintiffs failed to allege what the labels would have warned against and in what way the lack of such warnings was a proximate cause of the accident (see, Finguerra v. Conn, 252 A.D.2d 463, 676 N.Y.S.2d 154;  Silveira Dias v. Marriott Intl., 251 A.D.2d 367, 674 N.Y.S.2d 78;  Glucksman v. Halsey Drug Co., 160 A.D.2d 305, 553 N.Y.S.2d 724;  Schimmenti v. Ply Gem Indus., 156 A.D.2d 658, 549 N.Y.S.2d 152).

MEMORANDUM BY THE COURT.