Opinion
No. 100470/05.
2010-08-17
Marie SPICONARDI and Ronald Spiconardi, Plaintiff, v. MACY'S EAST, INC., Liz Claiborne, Inc. and Federated Department Stores, Inc., Defendants.
Rheingold Valet & Rheingold, PC, Koss & Schonfeld LLP, New York, attorneys for the plaintiff. Cozen O'Connor, Lester Schwab Katz & Dwyer, LLP, New York, attorneys for the defendant.
Rheingold Valet & Rheingold, PC, Koss & Schonfeld LLP, New York, attorneys for the plaintiff. Cozen O'Connor, Lester Schwab Katz & Dwyer, LLP, New York, attorneys for the defendant.
PAUL WOOTEN, J.
Motion sequence numbers 006 and 007 are consolidated for disposition.
In motion sequence number 006, defendants Macy's East, Inc. (Macy's) and Federated Department Stores, Inc. (Federated) (together, Macy's
) move, pursuant to CPLR § 3212, for summary judgment dismissing the complaint as against them.
Macy's is a subsidiary of Federated, and the parties refer to both defendants, together, as Macy's.
In motion sequence number 007, defendant Liz Claiborne, Inc. (Liz Claiborne) moves, pursuant to CPLR § 3212, to dismiss the complaint as against it, and to dismiss all counterclaims asserted against it.
In opposition, plaintiffs Marie Spiconardi (Marie) and Ronald Spiconardi (Ronald) cross-move, pursuant to CPLR 3126, for an order precluding defendants from introducing Fabric Utilization Reports (FUR) in support of their motions for summary judgment.
In her complaint, Marie alleges that a shirt that she purchased at Macy's, manufactured by Liz Claiborne, caught fire while she was cooking in the kitchen of her home, resulting in serious burns on more than 30% of the surface of her body. The complaint asserts four causes of action: (1) strict product liability; (2) breach of warranty; (3) negligence; and (4) loss of consortium on behalf of Marie's husband, Ronald.
According to her testimony at her examination before trial (EBT), Marie was home alone cooking on April 12, 2004, when the accident happened. Marie EBT, at 11, 12. At the time of the occurrence, Marie was wearing a denim jacket over the shirt in question, and the sleeves of the shirt did not extend beyond the sleeves of the jacket. Id. at 27–28. The incident occurred while Marie was boiling water to make a cup of tea. The saucepan that she was using to boil the water was smaller than the grate upon which it rested, and she had turned the gas flame up to “high.” Id. at 13, 15–18, 22–23. The accident happened a couple of minutes after Marie set the water to boil, but she could not say whether the water had actually started to boil when the shirt caught fire. Id. at 17, 22.
At the time that the shirt caught fire, Marie was facing the stove, directly in front of it, and was reaching above it with her right hand for the microwave, when she realized that the left sleeve of her jacket was on fire. Id. at 19–20. Marie could not say whether any part of her body was touching the stove at that time, or whether the sleeve of her jacket had come into contact with the gas flame. Id. at 20–21, 119–120.
Marie testified that when she saw that the bottom edge of her left jacket sleeve was burning, she walked a few feet to her sink, ran water on the jacket, and then removed it. Id. at 23–25. Although the jacket was smoking, there were no flames, and she felt nothing else burning. Id. at 28. Marie also said that, by the time that she reached the sink, her entire shirt was on fire. Id. at 117–118. Marie then walked out of her kitchen, through her living room, out her front door, and then rolled on her brick walkway to extinguish the flames. Id. at 29. When the flames went out, Marie removed the shirt, which was still smoking, and threw it on the lawn. Id. at 29–31, 84. Marie then called her husband, who told her to call 911, which she did, and then she waited outside for an ambulance. Id. at 29, 31.
At his EBT, Ronald testified that, when he arrived home that night, he saw the remnants of the shirt on the lawn, picked it up, placed it in a plastic bag, and saved it. Ronald EBT, at 19.
Ronald also stated that there were remnants of the shirt fused to the brick walkway, which he did not preserve. Id. at 25. Ronald said that he eventually gave the plastic bag with the shirt's remnants to a lawyer, Keith Harriton. Id. at 21–23.
Keith Harriton submitted an affidavit in which he affirms that he never took possession of the shirt's remnants. Macy's Motion, Ex. Q.
Both Marie and Ronald described the shirt in the same way, but could not say when or how it had been purchased or paid for, although Marie testified that Ronald bought the shirt for her at Macy's in White Plains, probably three or four years prior to the day of the accident. Marie EBT, at 71. Marie said that she took the shirt from a rack in the Liz Claiborne section of the store, and that there was a Liz Claiborne label on the collar of the shirt (white with grey lettering and a triangular symbol), and that she recalled no other labels on the shirt, including any care labels. Id. at 73–75, 78–79.
Marie further testified that she had worn and washed the shirt a number of times over the years, and that she never had the garment dry cleaned. Id. at 103–105. Ronald's recollection agreed with that of Marie's. Ronald further stated that he could not recall whether he paid for the shirt with cash or with a credit card, but that, if he paid with a credit card, it would have been a Macy's credit card. Ronald EBT, at 11.
Victoria Wong (Wong), a buyer for Macy's who has been working for Macy's for 12 years, and who has been a buyer of Liz Claiborne products for Macy's since 2000,
testified that, after viewing the remnants of the shirt and photographs of the remnants of the shirt, she did not recognize the pattern as something that she had purchased from Liz Claiborne. Wong EBT, at 37–39, 62, 62, 67–68.
In their cross motion, plaintiffs assert that Wong did not buy Liz Claiborne products, and refer to a portion of her EBT. However, that portion of Wong's testimony concerned her employment at Macy's prior to 2000, and Wong's complete testimony is referenced above.
Plaintiffs do not have any photographs of the intact shirt being worn by Marie.
Ilijia Vujosevic, a sportswear buyer for Macy's, including Liz Claiborne merchandise,
also looked at the remnants of the shirt and the photograph of the remnants of the shirt and testified that he had never seen a shirt with that type of pattern or color before, and that he could not tell from the remnants whether it is a Liz Claiborne product. Macy's Motion, Ex. Y, at 26.
In their cross motion, plaintiffs assert that this witness did not buy Liz Claiborne products for Macy's, and refer to a portion of his EBT. However, that portion of his testimony refers to his earlier work at Macy's, and the complete EBT reflects that he does buy Liz Claiborne products for the store.
Barbara Stein (Stein), Macy's vice president of merchandise information systems, testified that she researched all of plaintiffs' credit card transactions and was unable to find that either Marie or Ronald had ever purchased a Liz Claiborne shirt with a Macy's credit card. Stein EBT, at 25–28, 30. In making her search, Stein went through Macy's computer system looking up both plaintiffs' credit card transactions between 1999 and 2004, and found only one Liz Claiborne purchase, which was not a shirt. Id. at 50–55. Further, Stein showed the photograph of the shirt remnant to the buyer who bought Liz Claiborne merchandise for Macy's, and he could not identify the pattern as something that he had purchased. Id. at 38–39, 43, 51.
Sharen Mirell (Mirell), a 20–year employee of Liz Claiborne, was deposed by plaintiffs. Mirell had been a consumer relations director at Liz Claiborne for seven years, and could not identify the pattern of the shirt as a Liz Claiborne product. Mirell EBT, at 5, 45, 47–48. She also testified that Liz Claiborne did not make that type of mini-check pattern during the late 1990s, and that such a pattern was rare. Id. at 48–49. Additionally, Mirell submitted an affidavit in which she attested to the fact that, between 1998 and 2002, Liz Claiborne had received no complaints about the flammability of any of the women's shirts that it had manufactured, regardless of the type of fabric involved. Macy's Motion, Ex. AA.
Teklu Anno (Anno), Liz Claiborne's director of technical assistance and product safety, also stated that he did not recognize the shirt remnant as a Liz Claiborne product. Motion, Ex. BB. Also, after viewing the shirt remnant, Anno said that the fabric did not require flammability testing before being used in merchandise because it was a “plain fabric,” meaning that such fabrics only required testing if the garment weighs less than 2.6 ounces per square yard. Id.
In response to this court's order of March 22, 2007, Liz Claiborne stated that it (1) had received no complaints that the women's cotton shirts that it had made were flammable; (2) had no documents as to any investigations of complaints or reports that the cotton shirts that it manufactured were flammable; (3) had not been sued on a complaint that any of its women's shirts were flammable; (4) had not recalled any of its women's cotton shirts; and (5) had not been cited in any complaint of flammability. Macy's' Motion, Exs. O and P.
Dr. Carl Abraham, an expert in the areas of safety, safety engineering and design and new product development, among other areas, has been identified by plaintiffs as an expert whom they expect to call to testify. According to plaintiffs' expert witness disclosure, Dr. Abraham will testify that the fabric in the shirt was excessively flammable, basing his opinions on generally accepted scientific principles. Macy's Motion, Ex. U. At his deposition, Dr. Abraham testified that the exemplar shirt that he tested was purchased by plaintiffs' counsel, and that is was fairly close in weight and thread count to the remnant. Dr. Abraham EBT, at 19–20. Dr. Abraham also said that the remnant bore no label or indication that would allow him to identify its manufacturer, vendor, or the material of which the shirt was made. Id. at 21–22. Dr. Abraham did not test the actual shirt remnants. Id. at 15–17.
In their cross motion, plaintiffs assert that Liz Claiborne has been unable to provide complete line books and flyers for the years 1998, 2001 and 2003, which, they infer, may contain photographs of the shirt in question. Further, plaintiffs say that Liz Claiborne has produced no documents or records of manufacture or sales of garments, or any documents relating to sales of products sold exclusively to Macy's. It is plaintiffs' contention that these records would evidence that the shirt in question was manufactured by Liz Claiborne.
The substance of plaintiffs' cross motion is that the FUR that appears in Liz Claiborne's motion, allegedly reflecting all of the garments manufactured by Liz Claiborne and shipped to Macy's in White Plains between January 1, 1998 and January 1, 2003, should be precluded, because that report was provided post-discovery, after Liz Claiborne stated, during discovery, that no such documents exist. Additionally, plaintiffs aver that the FUR has not been properly authenticated. Liz Claiborne introduced the FUR with an affidavit from Mirell, which, plaintiffs argue, is insufficient to authenticate the documents because it does not indicate how the figures in the report were compiled, who compiled them, where the data is stored, who located the reports, the basis for stating that they include all garments manufactured by Liz Claiborne and shipped to Macy's, why the records were not produced prior to the close of discovery, or who are the custodians of the records.
In reply, defendants contend that the FUR was created specifically for litigation purposes, and did not exist during the discovery process. Further, defendants maintain that an affidavit executed by Mirell on December 15, 2009, sufficiently describes how the document was created, specifying the underlying computer source for the document, so as to render the FUR properly authenticated for the purpose of supporting the instant summary judgment motions. Liz Claiborne Motion, Ex. K.
DISCUSSION
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted].” Santiago v. Filstein, 35 AD3d 184, 185–186 (1st Dept 2006). The burden then shifts to the motion's opponent to “present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact.” Mazurek v. Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231 (1978).
Defendants' motions for summary judgment are denied.
The court's function with respect to a motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a material fact. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223,supra. Therefore, even if an issue of fact is debatable or arguable, a motion for summary judgment should be denied. Stone v. Goodson, 8 N.Y.2d 8 (1960).
It is the general rule that
“one of the necessary elements plaintiff in a strict products liability cause of action must establish by competent proof is that it was the defendant who manufactured and placed in the stream of commerce the injury-causing defective product. The identity of the manufacturer of a defective product may be established by circumstantial evidence. Moreover, circumstantial evidence may sufficiently demonstrate the maker's identity, notwithstanding the destruction of the allegedly defective product after use. The circumstantial evidence of identity of the manufacturer of a defective product causing personal injury must establish that it is reasonably probable, not merely possible or evenly balanced, that the defendant was the source of the offending product. Speculative or conjectural evidence of the manufacturer's identity is not enough [internal citations omitted].”
Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601–602 (1996).
In the instant case, both Marie and Ronald identified the shirt as having been manufactured by Liz Claiborne and having been sold to them by Macy's. Even a tertiary reading of their EBTs evidences that their statements are absolutely certain, assertive, and contain not an iota of speculation as to the source of the shirt. In comparison, the EBTs of the defendants' witnesses indicate that they did not recognize the shirt remnant or fabric as having been manufactured by Liz Claiborne, or sold by Macy's, but their statements also indicate an uncertainty, and none of them affirmatively states that the shirt was not, or could not have been, manufactured by Liz Claiborne or sold by Macy's.
The conflicting depositions presented in the instant papers raise a question of fact that requires resolution at trial by the trier of fact. BME Three Towers, Inc. v. 225 East Realty Corp., 3 AD3d 444 (1st Dept 2004); Greenidge v. HRH Construction Corp., 279 A.D.2d 400 (1st Dept 2001); Chapman v. Columbia University in City of New York, 269 A.D.2d 227 (1st Dept 2000).
“Drawing all reasonable inferences in favor of the non-moving parties, the parties' conflicting [EBTs] raise issues of fact that in large part turn on witness credibility” (Agli v. Turner Construction Company, Inc., 237 A.D.2d 173, 174 [1st Dept 1997] ), and “[i]t is well settled that it is not the court's role to pass upon issues of credibility on a summary judgment motion [citations omitted].” Mirchel v. RMJ Securities Corp., 205 A.D.2d 388, 390 (1st Dept 1994). “Credibility of witnesses must be weighed and permissible inferences considered by the trier of fact.” Matter of Hutchinson, 13 AD3d 704, 707 (3d Dept 2004).
The cases cited by defendants in support of their proposition that a plaintiff's deposition testimony alone is insufficient to rebut a defendant's summary judgment motion, in instances in which the defendant has established a prima facie entitlement to judgment, are distinguishable from the case at bar.
In King v. Gregruss Management Corp. (57 AD3d 851 [2d Dept 2008] ), the only evidence opposing the defendants' motion was that of an expert whose testimony was precluded by the court, thereby rendering the defendants' motion unchallenged, which is not the case in the matter at hand.
In Bevens v. Tarrant Manufacturing Company, Inc. (48 AD3d 939 [3d Dept 2008] ), the plaintiff stated at his deposition that he did not know the origin of the allegedly defective product, and that he did know whether the object was the original one or a replacement. This is in sharp contract to the affirmative testimony of both Marie and Ronald that the shirt was a Liz Claiborne product that they had purchased at Macy's.
In Lewis v. Baker (1 AD3d 217 [1st Dept 2003] ), the only evidence linking the manufacturer to the product was a statement by the plaintiff's employer that he had purchased the item from a Sear's catalogue about 15 years prior to the accident. That court found that the statement, unsupported by any catalogue, manual or receipt, was insufficient to raise a triable issue of fact. However, that defendant was able to evidence that the item was never listed in a Sear's catalogue. In the instant case, defendants' witnesses only state that they did not recognize the shirt; none categorically stated that the shirt was never manufactured by Liz Claiborne or sold by Macy's.
Lastly, in Healey v. Firestone Tire & Rubber Co. (87 N.Y.2d 596,supra ), the item in question was only identified as the type of tire that was manufactured by several different manufacturers, that defendant being only one of them. In this case, Marie and Ronald definitively assert that the shirt was made by Liz Claiborne and sold to them by Macy's; they do not say that it was the type of shirt manufactured by several companies and sold at various stores.
Furthermore, in addition to the conflicting EBTs, the parties have provided conflicting expert reports, which would also mandate the denial of a summary judgment motion on a product liability cause of action. Kreusi v. City of New York, 40 AD3d 820 (2d Dept 2007); Martin v. Rockwell Graphic Systems, Inc., 192 A.D.2d 1124 (4th Dept 1993).
The court also rejects Macy's argument that the standard for deciding a summary judgment motion in a product liability case is different from the standard in deciding summary judgment motions in regular negligence cases. As stated above, the function of a court in determining whether or not to grant or deny a motion for summary judgment is issue finding, not issue determination (Sillman v. Twentieth Century–Fox Film Corp. 3 N.Y.2d 395,supra ), regardless of the underlying area of law.
Based on the foregoing, defendants' motions for summary judgment are denied.
In light of the court's determination based on the conflicting EBTs and affidavits, plaintiffs' cross motion for preclusion of the FUR documents is denied as moot.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that defendants' motions for summary judgment are denied; and it is further,
ORDERED that plaintiffs' motion seeking preclusion is denied as moot; and it is further,
ORDERED that the Clerk is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.