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OSBORN v. KELLEY

61 A.D.2d 367 (1978)

Dorothy M. Osborn, as Executrix of Nelson S. Osborn, Deceased, et al., Appellants, v. John Kelley et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Third Department.

March 2, 1978

Attorney(s) appearing for the Case

Julien & Schlesinger, P. C. (Alfred S. Julien and Richard W. Miller of counsel), for appellants.

Carter, Conboy, Bardwell, Case & Blackmore (James S. Carter of counsel), for John Kelley and others, respondents.

KANE, STALEY, JR., and LARKIN, JJ., concur; HERLIHY, J., not taking part.

SWEENEY, J. P.

In this action against three physicians, a hospital and a drug manufacturer, eight causes of action were alleged. The individual defendants moved to dismiss all eight causes of action. Special Term granted the motion as to the "Fifth", "Seventh" and "Eighth" causes of action and plaintiffs appeal.

The "Fifth" cause of action is based on breach of warranty and is premised on the alleged...

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