57 A.D.2d 234 | N.Y. App. Div. | 1977
Plaintiff’s complaint alleges that on October 28, 1973 Deborah Ribley sustained serious injuries when her hair became entangled in the drive shaft of a manure spreader manufactured by defendant, which she was operating. The first cause of action seeks recovery based upon alleged negligence in the manufacture and design of the spreader, while the second cause of action alleges breach of implied warranty of merchantability and strict products liability. The third cause of action is a derivative cause of action. Defendant asserted the Statute of Limitations as affirmative defenses to the second and third causes of action.
Plaintiff moved to strike the affirmative defenses and, in opposition, defendant alleged that the spreader was manufactured in 1961 and that following an initial sale and repossession it was sold to the Ribleys on December 7, 1966. This action was commenced May 15, 1974.
The issues raised on this appeal involve the question of whether the complaint states separate and distinct causes of action based upon strict products liability and upon breach of warranty, and which Statute of Limitations is applicable. It is clear that the allegations set forth in plaintiff’s second cause of action seek to recover damages based on the doctrine of strict products liability (Codling v Paglia, 32 NY2d 330). It is now well settled, moreover, that the injured plaintiff and those asserting derivative claims seeking to recover from a manufacturer in consequence of an alleged defect in its product may base their case on contract liability, express or implied, or negligence or strict products liability, or in some
As so aptly stated by Special Term, if the four-year statute should be held to apply, not only has the contract Statute of Limitations run, but the injured infant would be deprived of the tolling provisions of CPLR 208 since at the time of her accident, the four-year contract period having passed, she was not an individual entitled to commence an action for breach of the implied warranty. There being no such action in favor of the infant, neither would a derivative action exist in favor of the plaintiff parent. We agree with the rationale of Special Term’s decision that since there has now been recognized a separate and distinct cause of action based on strict products liability founded upon tort, and it is the tortious wrong and not the sale that proximately caused the injury, there could be no logical basis for the application of a contract Statute of Limitations to a tort cause of action. We conclude, therefore, that Special Term properly struck that portion of the second
The order should be affirmed, without costs.
Greenblott, Kane, Main and Herlihy, JJ., concur.
Order affirmed, without costs.