ALBERTO v. NASSAU SLING CO

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the motion is denied, and the order is vacated; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action ( see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501 [a] [1]).

Nassau Sling Co. voluntarily settled the plaintiff's claim against it based on an allegation that a product distributed by it and manufactured by Lift-All was defective. To recover against an indemnitor when a party voluntarily settles a claim, the party must demonstrate that it was legally liable to the party it paid and that the amount of settlement was reasonable ( see Jemal v. Lucky Ins. Co., 260 AD2d 352, 353).

A products liability case can be proven without evidence of any particular defect by presenting circumstantial evidence excluding all causes of the accident not attributable to the defendant's product, thereby giving rise to an inference that the accident could only have occurred due to some defect in the product ( see Halloran v. Virginia Chems., 41 NY2d 386; Graham v. Pratt Sons, 271 AD2d 854). That is, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product's failure that are not attributable to the defendants ( see Speller v. Sears, Roebuck Co., 100 NY2d 38, 41; Halloran v. Virginia Chems., supra). However, there are issues of fact as to whether Nassau eliminated all causes of the accident not attributable to a defect in the product. Thus the Supreme Court erred in granting Nassau's motion for summary judgment on its claim for indemnification against Lift-All ( see Speller v. Sears, Roebuck Co., id.; Jemal v. Lucky Ins. Co., supra).

Lift-All's remaining contentions are without merit.