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JAMES v. KEEFE & KEEFE

85 Misc.2d 301 (1975)

Warren James, Respondent, v. Keefe & Keefe, Inc., Appellant and Third-Party Plaintiff-Appellant. Jewish Home and Hospital for the Aged, Third-Party Defendant-Respondent.

Supreme Court, Appellate Term, First Department.

May 29, 1975

Attorney(s) appearing for the Case

Daniel J. Coughlin and Joseph D. Ahearn for appellant and third-party plaintiff-appellant. Kaufman & Siegel, P. C. (Charles F. McGuire of counsel), for respondent.

FRANK and DUDLEY, JJ., concur in Per Curiam memorandum; MARKOWITZ, P.J., dissents in a separate memorandum.

Per Curiam.

In order to recover under a theory of "strict products liability" or "breach of implied warranty of merchantability", it was necessary for the plaintiff to prove that there was a defect in the instrumentality that caused the injury (Velez v Craine & Clark Lbr. Corp., 33 N.Y.2d 117, 122; Jerry v Borden Co., 45 A.D.2d 344, 348-349; Jarkow v General Motors...

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