Oswald v. Reimann & Georger, Inc.

Order unanimously affirmed, with costs. Memorandum: Plaintiff Daniel Oswald was injured while using a track hoist manufactured by defendant Reimann & Georger, Inc. Plaintiffs’ complaint against Briggs & Stratton Corporation, the manufacturer of the gasoline engine incorporated into the hoist, has been dismissed as barred by the Statute of Limitations. Defendant Briggs & Stratton appeals from the denial of its motion for summary judgment dismissing Reimann & Georger’s cross claim against it. We affirm. Reimann & Georger’s cross claim for apportionment of fault necessarily depends upon the proof adduced at trial and the basis of plaintiffs’ recovery, if any, against it. Since Reimann & Georger cannot at this stage “lay bare” its proof on its cross claim, the motion is premature. Moreover, summary judgment is rarely granted in negligence actions (see McDougal v County of Livingston, 89 AD2d 815, 816). (Appeal from order of Supreme Court, Erie County, Flaherty, J. — summary judgment.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Moule, JJ.