Mortka v. K-Mart Corp. , 635 N.Y.S.2d 105 ( 1995 )

Casey, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered November 9, 1994 in Schenectady County, which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiffs’ cross motion to amend the complaint.

Based upon allegations that plaintiff Alfred Mortka was injured by a defective product which he purchased from defendant retailer, plaintiffs commenced this action to recover damages for Mortka’s personal injuries and his wife’s derivative loss. The complaint sought recovery on the basis of a negligence theory only. After issue was joined and discovery was completed, defendant moved for summary judgment dismissing the complaint on the ground that, as a matter of law, defendant was not negligent. Plaintiffs cross-moved for leave to amend their complaint to add causes of action based upon a breach of warranty theory. Supreme Court denied defendant’s motion and granted plaintiffs’ cross motion, resulting in this appeal by defendant.

In view of the relationship between a negligence theory and a breach of warranty theory when a consumer is injured by a defective product (see, Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106), and considering the similar burden of proof imposed upon the consumer under each theory (see, Tardella v RJR Nabisco, 178 AD2d 737), we find no error in Supreme Court’s decision to grant plaintiffs leave to amend their complaint to add a breach of warranty theory (see, England v Sanford, 167 AD2d 147, affd 78 NY2d 928). As to defendant’s motion to dismiss the negligence causes of action, plaintiffs’ brief states that they did not oppose the motion in Supreme Court and will not address the issue before this Court. In these circumstances, we are of the view that plaintiffs have abandoned their negligence claims and, therefore, the claims should be dismissed.