Opinion
April 22, 1974
In an action by an infant to recover damages for personal injuries and by her mother for loss of services, etc., (1) defendants Bock Laundry Machine Co., Inc., and H. Greenwald, Inc., appeal from so much of an order of the Supreme Court, Kings County, dated December 5, 1973 and made on resettlement, as (a) denied the branch of a motion by said defendant Bock which was to dismiss the fourth cause of action of the complaint, a cause by the infant plaintiff for breach of warranty, and (b) granted the infant plaintiff leave to amend the complaint to the extent of pleading a cause of action for strict liability in tort; (2) defendant Bock also appeals from a further part of the order, one which granted leave to coplaintiff Ann Brown and codefendants Bermil Sales Corp. and H. Greenwald, Inc., to amend their pleadings to the extent of alleging a derivative cause of action and causes for indemnification, respectively, based upon such new cause of the infant plaintiff for strict liability in tort; and (3) defendant H. Greenwald, Inc., also appeals from a still further part of the order, one which dismissed the second cross complaint of said defendant, a cause for indemnity as to the infant plaintiff's claim based on breach of warranty. Order modified, on the law, (1) by striking the third decretal paragraph thereof, which denied Bock's request for dismissal of the fourth cause of action of the complaint, and substituting therefor a provision dismissing said cause of action and (2) by striking from the fifth decretal paragraph thereof the following: "Ann Brown", "derivative" and "based upon such proposed new claim and". As so modified, order affirmed insofar as appealed from, with one bill of $20 costs and disbursements to the infant plaintiff against appellants jointly, upon the authority of Rivera v. Berkeley Super Wash ( 44 A.D.2d 316). Latham, Acting P.J., Brennan and Munder, JJ., concur, Brennan, J., under constraint of the cited authority. Cohalan and Benjamin, JJ., concur as to so much of the majority decision as effectuates a dismissal of the fourth cause of action of the complaint and an affirmance of the dismissal of the second cross complaint of defendant H. Greenwald, Inc., but otherwise dissent and vote to further modify the order so as to strike therefrom the granting of leave to plaintiffs and codefendants Bermil Sales Corp. and H. Greenwald, Inc., to amend their pleadings to set forth claims based on strict liability in tort, for the reasons set forth by them, respectively, in their separate dissenting opinions in Rivera v. Berkeley Super Wash ( 44 A.D.2d 316).