| Schuler v S & S Corrugated Paper Mach. Co. |
| 2007 NY Slip Op 02359 [38 AD3d 1345] |
| March 16, 2007 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Donald P. Schuler et al., Appellants-Respondents, v S & S Corrugated Paper Machinery Co. et al., Defendants, Don Mowry Flexo, Inc., Respondent-Appellant, and Valco Cincinnati, Inc., Respondent. Don Mowry Flexo, Inc., Third-Party Plaintiff-Appellant, v Copar Corp., Third-Party Defendant-Respondent, et al., Third-Party Defendant. |
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Iacono, Cambs and Goergen, Buffalo, Goldberg Segalla LLP (John J. Jablonski of counsel), for third-party plaintiff-appellant and defendant-respondent-appellant.
Damon & Morey LLP, Buffalo (Michael J. Willett of counsel), for defendant-respondent.
Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), for third-party defendant-respondent.
Appeal and cross appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered May 12, 2006 in a personal injury action. The order granted the motion of defendant Valco Cincinnati, Inc. for summary judgment dismissing the complaint and cross claims against it, granted the motion of third-party defendant Copar Corp. for summary judgment dismissing the third-party complaint against it and denied in part the motion of defendant-third-party plaintiff for summary judgment.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. [*2]
Memorandum: We affirm for reasons stated in the decision at Supreme Court. We add only that defendant Valco Cincinnati, Inc. (Valco) established its entitlement to judgment as a matter of law by establishing that its component parts were not defective and did not contribute to the accident involving plaintiff Donald P. Schuler (see e.g. Jones v W + M Automation, Inc., 31 AD3d 1099 [2007], lv denied 8 NY3d 802; Hothan v Herman Miller, Inc., 294 AD2d 333, 333-334 [2002]; Ayala v V & O Press Co., 126 AD2d 229, 234-235 [1987]). Although Valco would periodically make repairs to its component parts on the machine at issue, we conclude that, in the absence of a routine maintenance contract or other ongoing relationship requiring Valco to service the machine, Valco had no duty to inspect the machine or to warn about defects " 'unrelated to the problem that it was summoned to correct' " (Rutherford v Signode Corp., 11 AD3d 922, 923 [2004], lv denied 4 NY3d 702 [2005]; cf. Dauernheim v Lendlease Cars, 238 AD2d 462, 463 [1997]). Present—Gorski, J.P., Martoche, Smith, Lunn and Pine, JJ.