Flex-O-Vit USA, Inc. v. Niagara Mohawk Power Corp. , 739 N.Y.S.2d 316 ( 2002 )

Appeal from an order and judgment (one document) of Supreme Court, Erie County (Fahey, J.), entered May 4, 2001, which, inter alia, granted the motions of defendants Niagara Mohawk Power Corporation, National Diecasting Machinery Division of Racine Federated, Inc., and Avnet Machinery and the cross motion of defendant Louvers & Dampers, Inc., and the motion of third-party defendant for summary judgment.

It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously modified on the law by denying the motion of defendant Niagara Mohawk Power Corporation in part and reinstating the fourth amended complaint insofar as it asserts a cause of action for ordinary negligence against defendant Niagara Mohawk Power Corporation, and reinstating the cross claims against it, and by denying the cross motion of third-party defendant and reinstating the third-party complaint, by denying the motions of defendants Avnet Machinery and National Diecasting Machinery Division of Racine Federated, Inc. and denying in part the cross motion of defendant Louvers & Dampers, Inc. with respect to the merits of the causes of action for negligence and strict products liability, and reinstating the fourth amended complaint against them with the exception of the breach of warranty cause of action against defendant Louvers & Dampers, Inc. and as modified the order and judgment is affirmed with costs to plaintiff and the matter is remitted to Supreme Court for further proceedings in accordance with same memorandum as in Flex-O-Vit USA v Niagara Mohawk Power Corp. (292 AD2d 764 [decided herewith]). Present — Wisner, J.P., Hurlbutt, Kehoe and Lawton, JJ.