Guarino v. Mohawk Containers Co., Inc.

59 N.Y.2d 753 (1983)

Angelo Guarino, Jr., et al., Appellants, v. Mohawk Containers Co., Inc., Respondent and Third-Party Plaintiff. New York Air Brake Co., Inc., Third-Party Defendant.

Court of Appeals of the State of New York.

Decided May 11, 1983.

Albert A. Alteri for appellant.

Donald P. Colella for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge SIMONS taking no part.

*754MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff has failed to set forth any facts or circumstances from which it could be found that his use of defendant's product was foreseeable, and accordingly summary judgment was properly granted. Inasmuch as plaintiff had deposed one of defendant's officers and in the 17 months available had not indicated a desire for further disclosure, that he now asserts that he had not completed discovery does not interdict the grant of summary judgment (Chemical Bank v PIC Motors Corp., 58 N.Y.2d 1023).

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.