Opinion
March 2, 1992
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Upon oral argument of the parties, it is,
Ordered that the motion is granted, and the appeal is dismissed, without costs or disbursements.
The record reveals that the order from which the appeal is taken is a trial ruling denying the appellant's motion to dismiss the complaint insofar as it is asserted against it, made at the close of the plaintiff's case. At oral argument of the appeal, the plaintiff moved to reargue his earlier motion to dismiss the appeal, which was denied by decision and order of this court dated June 26, 1990.
Upon reargument of the plaintiff's motion, we conclude that the order purportedly appealed from is merely an oral trial ruling which has been memorialized in writing. Such a ruling is not appealable either as of right or by permission (see, CPLR 5501; Slavin v Berlin, 172 A.D.2d 514; Leiner v Howard's Appliance, 104 A.D.2d 634). Accordingly, the appeal must be dismissed.
In any event, if we were to review the order, we would find that the plaintiff presented a prima facie case sounding in strict products liability for a design defect which prevented the average user of the appellant's air rifle from clearly discerning whether it was loaded. Thompson, J.P., Sullivan, Harwood and Balletta, JJ., concur.