Reich v. Graymills Corp. (198 A.D.2d 759, 1993)

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of A.T. Supply, Inc. (A.T. Supply) for summary judgment on its claim for common-law indemnification against defendant Graymills Corporation (Graymills). The record fails to establish, as a matter of law, that A.T. Supply’s potential liability for failure to warn, as the seller of an allegedly defective product, arises solely from its relationship to Graymills, the manufacturer (see generally, Sukljian v Ross & Son Co., 69 NY2d 89, 95; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106-107). Furthermore, failure to warn is essentially a theory of negligence and the drastic remedy of summary judgment is rarely granted (see, Cooley v Carter-Wallace Inc., 102 AD2d 642, 648). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present — Denman, P. J., Green, Balio, Fallon and Boehm, JJ.