94 Misc. 2d 336 | N.Y. Sup. Ct. | 1977
OPINION OF THE COURT
This is a motion, pursuant to CPLR 3211 (subd [a], par 7) to dismiss plaintiffs’ second cause of action which is founded upon the theory of strict products liability.
In essence, this cause of action alleges that the plaintiff, Beatrice Beyer, an employee of W. T. Grant Company, became ill after having come in contact with allegedly diseased hamsters which had been distributed by the defendant.
On this type of motion, the movant can prevail only if he can establish conclusively that the plaintiff has no cause of action. (Rovello v Orofino Realty Co., 40 NY2d 633, 636.)
The defendant argues that there is no cause of action asserted here because the doctrine of strict products liability applies only to those cases involving sophisticated manufactured products. Since a hamster does not come within this
Since the court does not accept defendant’s argument that the doctrine of strict products liability should be limited to cases involving complex manufactured products, it will deny this motion.
In summary, since the defendant has not established conclusively that the plaintiff has no cause of action and because all of the necessary elements of a cause of action in strict products liability are set forth in plaintiff’s complaint, this motion is denied without costs.
Defendant’s position is not supported by case law since the Court of Appeals has applied the strict products liability doctrine in a case where the defective product was a piece of rough spruce planking. (Velez v Craine & Clark Lbr. Corp., 33 NY2d 117.)