Opinion
83 A.D.3d 472 923 N.Y.S.2d 28 Marie SPICONARDI, et al., Plaintiffs-Respondents, v. MACY'S EAST, INC., et al., Defendants-Appellants. No. 2011-02922 Supreme Court of New York, First Department April 12, 2011
Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for Macy's East, Inc. and Federated Department Stores, Inc., appellants.
Cozen O'Connor, New York (John J. McDonough of counsel), for Liz Claiborne, Inc., appellant.
Koss & Schonfeld, LLP, New York (Simcha D. Schonfeld of counsel), for respondents.
GONZALEZ, P.J., SWEENY, MOSKOWITZ, RENWICK, RICHTER, JJ.
Order, Supreme Court, New York County (Paul Wooten, J.), entered August 25, 2010, which, insofar as appealed from, in this action for injuries sustained when the shirt that plaintiff was wearing caught on fire as she was cooking, denied defendants' motions for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint. Defendants, alleged seller and manufacturer of the subject garment, established their prima facie entitlement to judgment as matter of law. Defendant Liz Claiborne, Inc. demonstrated that the shirt was not contained in any of the product " line books" offered during the relevant time period and that the garment was not contained in Fabric Utilization Reports (FUR), which showed all garments manufactured and shipped to the subject store during the relevant time frame. Contrary to plaintiffs' position, the FUR may be considered, as it was not an existing business record subject to the motion court's discovery orders, but rather was a document created for litigation ( see Slavenburg Corp. v. North Shore Equities, 76 A.D.2d 769, 770, 429 N.Y.S.2d 8 [1980] ).
In opposition, plaintiffs failed to raise a triable issue of fact. Subjective statements about where a product was purchased are not sufficient to create a triable issue of fact where there is objective proof that a defendant did not sell the allegedly defective product ( see Whelan v. GTE Sylvania, 182 A.D.2d 446, 582 N.Y.S.2d 170 [1992] ).
In any event, defendants also established that the garment was reasonably safe. Indeed, defendants' expert tested an exemplar of the shirt pursuant to the federal regulations contained in 16 C.F.R. part 1610, and found that both the " ignite time" and the " burn time" met or exceeded federal regulations, which was sufficient to satisfy defendants' burden on a motion for summary judgment ( cf. Boyle v. City of New York, 79 A.D.3d 664, 665, 914 N.Y.S.2d 126 [2010] ). The opinion of defendants' expert was sufficient in that it exhibited " a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability" ( Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532 [1979] ).
Although mere compliance with minimum industry standards is, at most, some evidence to be considered and is not a shield to liability ( see Feiner v. Calvin Klein, Ltd., 157 A.D.2d 501, 502, 549 N.Y.S.2d 692 [1990], the conclusory allegations raised by plaintiffs' expert, absent evidence that the product violated other relevant industry standards or accepted practices, or statistics showing the frequency of injuries arising out of the use of the product ( see Scivoletti v. New York Mercantile Exch., Inc., 38 A.D.3d 326, 327, 832 N.Y.S.2d 34 [2007], lv. denied 9 N.Y.3d 802, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007]; Cornwell v. Otis El. Co., 275 A.D.2d 649, 713 N.Y.S.2d 321 [2000] ), were insufficient to create issues of fact warranting the denial of the motions.