Opinion
11285 Index 304567/15
03-19-2020
Osvaldo ALICEA, Plaintiff–Respondent, v. GORILLA LADDER COMPANY, et al., Defendants–Appellants, Luz Valentin, Defendant.
McVey & Parsky, LLC, Chicago, IL (Jonathan R. Sichtermann of the bar of the State of Illinois, admitted pro hac vice, of counsel), for appellants. McCartney Stucky LLC, Rye (Kathryn C. Llaurado of the bar of the State of California, the State of Minnesota and the State of Wisconsin, admitted pro hac vice, of counsel), for respondent.
McVey & Parsky, LLC, Chicago, IL (Jonathan R. Sichtermann of the bar of the State of Illinois, admitted pro hac vice, of counsel), for appellants.
McCartney Stucky LLC, Rye (Kathryn C. Llaurado of the bar of the State of California, the State of Minnesota and the State of Wisconsin, admitted pro hac vice, of counsel), for respondent.
Renwick, J.P., Gische, Mazzarelli, Webber, Singh, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about June 5, 2019, which, inter alia, denied the motion of defendants Gorilla Ladder Company, Tricam Industries, Inc. and The Home Depot U.S.A., Inc. for summary judgment dismissing plaintiff's claims alleging design defect and failure to warn, unanimously affirmed, without costs.
Plaintiff has withdrawn and discontinued his strict product liability and negligent manufacturing defect claims.
As to the design defect claim, "mere compliance with minimum industry standards is, at most, some evidence to be considered and is not a shield to liability" ( Spiconardi v. Macy's E., Inc., 83 A.D.3d 472, 473, 923 N.Y.S.2d 28 [1st Dept. 2011] ). Here, the averments of plaintiff's expert, based on testing of the subject ladder and exemplars of other ladders in the industry, that the subject ladder was defective and unreasonably dangerous because its design included feet that were prone to wear and tear and slip out, raised issues of fact as to whether the ladder was defectively designed and the proximate cause of plaintiff's injuries (see Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 450 N.E.2d 204 [1983] ).
The denial of summary judgment on the failure to warn claim was also proper, since plaintiff's expert raised issues of fact as to whether the ladder's warnings failed to identify the foot slip-out danger or instruct the user of proper methods to mitigate such danger (see Feiner v. Calvin Klein, Ltd., 157 A.D.2d 501, 549 N.Y.S.2d 692 [1st Dept. 1990] ).