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McDIVITT v. S. S. KRESGE CO.

80 A.D.2d 740 (1981)

Bette McDivitt, Individually and as Parent and Natural Guardian of Gary L. McDivitt, Respondent, v. S. S. Kresge Company et al., Respondents, and Denniston Chemical Company, Defendant-Appellant and Third-Party Plaintiff-Appellant. Southern Can Company, Third-Party Defendant-Respondent

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

February 26, 1981

Order affirmed, with costs.

Memorandum:

Defendant and third-party plaintiff Denniston Chemical Company has failed to show through anyone with personal knowledge that the witness to be deposed, Julian M. Campbell, is no longer within its control.

Cardamone, J. P., and Simons, J. (dissenting).

Plaintiff seeks to recover damages for personal injuries sustained as the result of an explosion of an aerosol can of spray paint. She has sued defendant...

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