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MIRIAM BROWN, ETC., et al., respondents, v. ELM PLUMBING SUPPLY, LIMITED, et al., appellants (and a third-party action).

DECISION ORDER

ORDERED that the order is reversed, on the law, with one bill of costs, the motion and cross motion are granted, and the complaint and all cross claims are dismissed.

While the identity of a manufacturer/distributor and/or seller of a defective product may be established by circumstantial evidence (see, Healey v. Firestone Tire Rubber Co., 87 N.Y.2d 596, 601 ), the circumstantial evidence must establish that it is reasonably probable, not merely possible, that a defendant was the source of the offending product (see, Healey v. Firestone Tire Rubber Co., supra). The plaintiffs did not establish that it was reasonably probable that the appellants were the source of the allegedly defective product. Moreover, assuming that the appellants, Western American Manufacturing, Inc., and Elm Plumbing Supply, Limited, were the respective manufacturer/distributor and seller of the product which allegedly caused the infant plaintiff's injuries, the plaintiffs failed to establish that the product was in fact defective (see, Rosado v. Proctor Schwartz, 66 N.Y.2d 21, 25 ; D'Elia v. Martin A. Gleason, Inc., Funeral Homes, 250 A.D.2d 803 ).

The plaintiffs' remaining contentions are without merit.

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BROWN v. ELM PLUMBING SUPPLY, LIMITED
(Apr 13, 2000)