Slater v. Sears, Roebuck & Co.

—Order unanimously modified on the law and as modified affirmed without [951] costs in accordance with the following Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when the front wheel on the driver’s side of her automobile fell off as she was driving. Plaintiff alleges that the wheel fell off due to a defect in the lug nuts that she allegedly purchased from Sears, Roebuck & Co. (defendant) five days before the accident. Supreme Court properly granted that part of defendant’s motion seeking summary judgment dismissing the second cause of action, alleging breach of express warranty. Plaintiff acknowledged at her deposition that no express warranty was made with respect to the lug nuts. The court erred, however, in granting that part of the motion seeking summary judgment dismissing the first cause of action, alleging breach of implied warranties. Defendant failed to meet its burden of establishing as a matter of law that it did not sell the lug nuts to plaintiff (see, Horn v Homier Distrib., 272 AD2d 909, 910). Further, defendant is not entitled to judgment based upon the unavailability of the lug nuts following the accident (see, Bauer v Bashline Indus., 219 AD2d 841, 841-842; Abar v Freightliner Corp., 208 AD2d 999, 1000; Otis v Bausch & Lomb, 143 AD2d 649, 650). The existence and nature of a product defect may be proven circumstantially (see, Clark v Globe Bus. Furniture, 237 AD2d 846, 847; Otis v Bausch & Lomb, supra, at 650), and the proof submitted by plaintiff raises triable issues of fact whether the lug nuts allegedly sold by defendant were defective, i.e., not “fit for the ordinary purposes for which such goods are used” (UCC 2-314 [2] [c]; see, Denny v Ford Motor Co., 87 NY2d 248, 258-259, rearg denied 87 NY2d 969). We therefore modify the order by denying the motion in part and reinstating the first cause of action. (Appeal from Order of Supreme Court, Monroe County, Frazee, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Hayes, Scudder and Kehoe, JJ.