34 A.D.2d 577 | N.Y. App. Div. | 1970
In a negligence and breach of warranty action to recover damages for personal injuries, third-party plaintiff appeals (1) from an order of the Supreme Court, Richmond County, dated June 20, 1969, which granted third-party defendant’s motion to vacate service of the third-party summons and complaint and to dismiss the third-party action, and (2) from the judgment of said court entered thereon July 11, 1969. Order and judgment reversed, on the law, and motion remitted to Special Term for further proceedings not inconsistent with the views expressed herein, with $10 costs and disbursements to abide the event. In 1965, plaintiff, then a New York City fireman, commenced this negligence and breach of warranty action against third-party plaintiff (“Bertram”), third-party defendant (“Janesville”) and others. The complaint alleged that plaintiff was injured while fighting a fire and that at that time he was wearing a fireman’s “ turn-out ” coat which he had purchased from Bertram and which had been manufactured by Janesville, a Wisconsin corporation. The complaint alleged further that the negligence of Bertram and Janesville “ consisted in manufacturing and selling to plaintiff a fireman’s 1 turn-out ’ coat which was so improperly made as not to afford to plaintiff proper and adequate protection from the effects of fire and heat and in failing to warn plaintiff of the inadequacies of the said coat.” Bertram and Janesville were also charged with having breached their warranty that the coat “ was suitable for the purpose for which it was intended, that it was fire resistant and that it afforded protection from fire and heat.” Janesville was served without the State at a time when CPLR 302 afforded our courts jurisdiction over nondomiciliaries who had committed tortious acts within the ¡State; and Janesville ultimately succeeded in having the action dismissed as against it for lack of jurisdiction (see Naples v. Janesville Apparel Co., 29 A D 2d 971). Subsequent to the commencement of the action, CPLR 302 was amended so as to confer upon our courts jurisdiction over nondomiciliaries who commit “ a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act ” [emphasis added] (CPLR 302, suhd. [a], par. 3). Bertram then attempted to bring Janesville hack into the action by means of a third-party action which was commenced by service without the State. The third-party complaint seeks recovery over against Janesville in the event plaintiff recovers against Bertram for negligence (first cause of action) or breach of warranty (second cause of action). Janesville successfully moved to dismiss Bertram’s first cause of action for legal insufficiency and the second cause of action for lack of jurisdiction. The Special Term dismissed the first cause of action (for common-law indemnity) on the theory that “ The mere sale of an item, without more, is not