Juan Miranda et al., Respondents, v. C. Schmidt & Sons, Incorporated, et al., Defendants, and Firestone Tire & Rubber Company, Appellant

Juan Miranda et al., Respondents, v C. Schmidt & Sons, Incorporated, et al., Defendants, and Firestone Tire & Rubber Company, Appellant. [608 NYS2d 73] [MAJORITY] —Order, Supreme Court, Bronx County (Hansel McGee, J.), entered May 27, 1992, which denied defendant-appellant’s motion for summary judgment, unanimously affirmed, with costs. Contrary to respondents’ contentions, the within appeal is properly before this Court (see, Cohen v Cohen, 3 NY2d 339, 344) and the IAS Court properly denied defendant-appellant’s motion for summary judgment since the appellant could not demonstrate as a matter of law its inability to anticipate that its beer keg would be combined with a non-defective bung stopper in a way that created the potential for the bung to be explosively ejected. This appears to be "a case where the combination of one sound product with another sound product creates a dangerous condition about which” appellant had a duty to warn (Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 298). Appellant’s arguments with respect to warranty and design defect were rendered moot when the respondents withdrew claims based on those theories before the trial verdict, and we do not reach them. We have considered the appellant’s remaining arguments, and find them to be without merit. Concur — Sullivan, J. P., Rosenberger, Ellerin and Rubin, JJ.