Opinion
01-08-2015
Malgorzata WIACEK, etc., Plaintiff–Respondent, v. 3M COMPANY, etc., et al., Defendants, North Safety Products, Defendant–Appellant. Malgorzata Wiacek, etc., Plaintiff–Respondent, v. 3M Company, etc., et al., Defendants, Bacou–Dalloz Safety, Inc., et al., Defendants–Appellants.
Goldberg Segalla LLP, White Plains (Michael D. Shalhoub of counsel), for North Safety, appellant. Jones Day, Boston, MA (Dana Baiocco of the bar of the State of Massachusetts and the State of Pennsylvania, admitted pro hac vice, of counsel), for Bacou–Dalloz Safety, Inc., Bacou–Dalloz Dalloz USA Safety, Inc., Dalloz Safety, Inc., and Willson Safety Products, appellants. Belluck & Fox, L.L.P., New York (Seth A. Dymond of counsel), for respondent.
Goldberg Segalla LLP, White Plains (Michael D. Shalhoub of counsel), for North Safety, appellant.
Jones Day, Boston, MA (Dana Baiocco of the bar of the State of Massachusetts and the State of Pennsylvania, admitted pro hac vice, of counsel), for Bacou–Dalloz Safety, Inc., Bacou–Dalloz Dalloz USA Safety, Inc., Dalloz Safety, Inc., and Willson Safety Products, appellants.
Belluck & Fox, L.L.P., New York (Seth A. Dymond of counsel), for respondent.
SWEENY, J.P., ANDRIAS, SAXE, RICHTER, FEINMAN, JJ.
Opinion Orders, Supreme Court, New York County (Sherry Klein Heitler, J.), entered January 27, 2014, which, to the extent appealed from, denied defendants North Safety Products' and defendants Bacou–Dalloz Safety Inc., Bacou–Dalloz USA Safety, Inc., Dalloz Safety, Inc. and Willson Safety Products' (collectively, Willson Safety) motions for summary judgment dismissing the cause of action for failure to warn as against them, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment dismissing the complaint as against said defendants.
Plaintiff failed to plead a cause of action against either North Safety or Willson Safety alleging defects in the efficacy of their respirators and masks or a failure to warn of any such defects (see Meola v. Metro Demolition Contr. Corp., 309 A.D.2d 653, 654, 765 N.Y.S.2d 791 [1st Dept.2003], lv. denied 2 N.Y.3d 706, 780 N.Y.S.2d 311, 812 N.E.2d 1261 [2004] ). “Liberality in pleading is stretched too far when it is deemed permissible to plead one claim and then substitute for it an entirely different one” (New York Auction Co. Div. of Std. Prudential Corp. v. Belt, 53 A.D.2d 540, 384 N.Y.S.2d 464 [1st Dept.1976] [internal quotation marks omitted], appeal dismissed, 40 N.Y.2d 1079 [1976] ; see Poley v. Sony Music Entertainment, 222 A.D.2d 308, 636 N.Y.S.2d 10 [1st Dept.1995] ).
In any event, the claims of failure to warn of a defect must be dismissed because, as the motion court found in dismissing the claims of design or manufacturing defect, plaintiff failed to identify any defect in defendants' masks or respirators that caused her decedent to develop asbestos-related disease. Defendants established prima facie that their respirators and masks were in compliance with the applicable standards set by the National Institute for Occupational Safety and Health and thus were safe, and plaintiff failed to raise an inference that there was a defect in these products of which her decedent should have been warned.