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Supreme Court, Appellate Division, Fourth Department, New York.

TRIPLE R FARM PARTNERSHIP, Plaintiff-Respondent, v. IBA, INC. and Jim Tobin, Inc., Defendants-Appellants.

IBA, Inc., Third-Party Plaintiff-Respondent, v. Webco Chemical Corp., Third-Party Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, HURLBUTT, KEHOE, AND PINE, JJ. Trevett, Lenweaver & Salzer, P.C., Rochester (Cynthia A. Constantino of Counsel), for Defendant-Appellant and Third-Party Plaintiff-Respondent. Buck, Danaher, Ryan & McGlenn, Elmira (John J. Ryan, Jr., of Counsel), for Defendant-Appellant Jim Tobin, Inc. Harris Beach PLLC, Albany (Mark J. McCarthy of Counsel), for Third-Party Defendant-Appellant. Law Office of Jacob P. Welch, Corning (Jacob P. Welch of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this action against defendant IBA, Inc. (IBA), the wholesaler of a “teat dip” used by plaintiff to sanitize the udders of its dairy cows, and against defendant Jim Tobin, Inc. (Tobin), the retailer of the product.   Plaintiff asserted causes of action for, inter alia, strict products liability, breach of contract, negligence, and breach of “express and/or implied” warranties, seeking damages for injury to the cows and a consequent loss of milk production and profits.   The jury apportioned liability 5% to plaintiff and 95% to defendants.   Supreme Court, in addition to granting judgment to plaintiff, granted judgment in favor of Tobin for common-law indemnification from IBA and third-party defendant, Webco Chemical Corp., the manufacturer of the product, and in favor of IBA for common-law indemnification from third-party defendant.

 On these appeals by defendants and third-party defendant, we conclude that the court did not abuse its discretion in admitting certain expert testimony adduced by plaintiff (see generally National Fuel Gas Supply Corp. v. Goodremote, 13 A.D.3d 1134, 1135, 787 N.Y.S.2d 570;  Woodhouse v. Bombardier Motor Corp. of Am., 5 A.D.3d 1029, 1030, 773 N.Y.S.2d 732).   In addition, we reject the contention of defendants and third-party defendant that plaintiff impermissibly recovered for purely economic loss associated with the nonperformance of the product.   Instead, we conclude that plaintiff properly recovered for injury to property and consequential loss attributable to the product's defective and unsafe condition (see Hodgson, Russ, Andrews, Woods & Goodyear v. Isolatek Intl. Corp., 300 A.D.2d 1051, 1052-1053, 752 N.Y.S.2d 767;  Flex-O-Vit USA v. Niagara Mohawk Power Corp., 292 A.D.2d 764, 767, 739 N.Y.S.2d 785, lv. dismissed 99 N.Y.2d 532, 752 N.Y.S.2d 591, 782 N.E.2d 569;  see generally Bocre Leasing Corp. v. General Motors Corp. [Allison Gas Turbine Div.], 84 N.Y.2d 685, 688-693, 621 N.Y.S.2d 497, 645 N.E.2d 1195).

 We further reject the contention of defendants and third-party defendant that plaintiff's counsel on summation impermissibly appealed to the jury's sense of sympathy.   Rather, plaintiff's counsel appropriately argued that the injury to the cows constituted probative, albeit circumstantial, evidence that the product did not perform as intended and thus was defective (see generally Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 41-44, 760 N.Y.S.2d 79, 790 N.E.2d 252;  Maciarello v. Empire Comfort Sys., 16 A.D.3d 1009, 1011, 792 N.Y.S.2d 671).

 Finally, contrary to the contention of defendants and third-party defendant, plaintiff presented legally sufficient evidence that the product was defective (see generally Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Weigl v. Quincy Specialties Co., 1 A.D.3d 132, 133, 766 N.Y.S.2d 428;  Doty v. Navistar Intl. Transp. Corp., 219 A.D.2d 32, 37, 639 N.Y.S.2d 592, lv. denied 89 N.Y.2d 802, 653 N.Y.S.2d 279, 675 N.E.2d 1232;  George Larkin Trucking Co. v. Lisbon Tire Mart, 210 A.D.2d 899, 900, 620 N.Y.S.2d 654).   It cannot be said that “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Mirand v. City of New York, 84 N.Y.2d 44, 48-49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [internal quotation marks omitted];  see Doty, 219 A.D.2d at 37, 639 N.Y.S.2d 592).

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed with costs.