29 A.D.2d 939 | N.Y. App. Div. | 1968
Order, entered on July 17, 1967, denying defendant’s motion to dismiss the two causes of action contained in the complaint for failure to state a cause of action, unanimously affirmed, without costs or disbursements, and without prejudice to the determintaion by the trial court of the applicable law, depending on the facts as they are developed at the trial. The law questions raised cannot be resolved on the papers presented. A trial should be held in order to afford an opportunity to the parties to present all facts relevant to the determination of the questions. Concur — Capozzoli, Tilzer, McGivem and Rabin, JJ.; Eager, J. P., concurs in the following memorandum: I concur fully with the foregoing disposition. The defendant has failed to plead and, in support of its motion, has failed to set forth the pertinent facts supporting its claim that the law of the State of Massachusetts should be applied to defeat plaintiff’s alleged causes of action. The court should apply the law of the jurisdiction “ having ‘ the most significant relationship ’ with the issue presented ” (Farber v. Smolack, 20 N Y 2d 198, 204; Long v. Pan Amer. World Airways, 16 N Y 2d 337, 343), including the issues as to the alleged negligence of and breach of warranty by the defendant. The record, however, is devoid of a showing of the necessary details bearing upon such issues. [54 Misc 2d 310.]
