Upton v Redmond Prods., Inc.

2005 NY Slip Op 08973

Decided on November 21, 2005

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 21, 2005
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ROBERT W. SCHMIDT, J.P.
FRED T. SANTUCCI
REINALDO E. RIVERA
ROBERT A. SPOLZINO, JJ.
2003-10605






Trief & Olk, New York, N.Y. (Barbara E. Olk of counsel), for
appellants.
Gallagher Gosseen Faller & Crowley, Garden City, N.Y. (James
A. Gallagher, Jr., Robert A. Faller, and
David H. Arntsen of counsel), for
defendant second third-party plaintiff-
respondent-appellant.
Greenfield & Reilly (Carol R. Finocchio, New York, N.Y.
[Marie R. Hodukavich] of counsel), for
defendants third-party plaintiffs-respondents.
Nixon Peabody, LLP, Buffalo, N.Y. (David H. Tennant of
counsel), for third-party defendant-
respondent Dow Brands and second third-
party defendant-respondent Dow
Brands, Inc.

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Thomas, J.), dated September 19, 2003, as, upon a jury verdict, is in favor of the defendants third-party plaintiffs and the defendant second third-party plaintiff dismissing the complaint insofar as asserted against those defendants, and the defendant second third-party plaintiff cross-appeals from so much of the same judgment as dismissed the second third-party complaint.

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the cross appeal is dismissed; and it is further,[*2]

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs payable by the plaintiffs.

The plaintiffs allegedly sustained injuries when the plaintiff Catherine Upton was cleaning the outside of a can of hairspray, and the can exploded. The aerosol can was manufactured by the defendant United States Can Company, marketed by the defendants Redmond Products, Inc., and Redmond Products Distributing, Inc., and allegedly sold by the defendant Genovese Drug Stores, Inc. The jury found that Catherine Upton acted negligently in her handling of the aerosol can in question and was 100% at fault in the happening of the accident. On appeal, the plaintiffs contend, inter alia, that the trial court erred in not allowing an occupational therapist to testify about the location and nature of burns on Catherine's body.

"While courts are encouraged to conduct a bifurcated trial in cases involving personal injuries (see 22 NYCRR 202.42[a]), a unified trial should be conducted where the nature of the injuries has an important bearing on the question of liability" (Wright v New York City Hous. Auth., 273 AD2d 378). The instant trial dealt solely with the issue of liability and there was no proof submitted that injuries have an important bearing on the question of liability. The plaintiffs did not offer any evidence demonstrating that the location and extent of Catherine Upton's injuries would indicate how the accident occurred and help determine the appropriate liable party (cf. Wright v New York City Hous. Auth., supra). Under the facts of this case, the Supreme Court properly excluded the occupational therapist's testimony concerning injuries allegedly sustained by Catherine Upton.

The plaintiffs' remaining contentions are without merit.

In light of our determination on the appeal, the cross appeal has been rendered academic.
SCHMIDT, J.P., SANTUCCI, RIVERA and SPOLZINO, JJ., concur.

2003-10605 DECISION & ORDER ON MOTION
Catherine Upton, et al., appellants, v Redmond
Products, Inc., et al., defendants third-party
plaintiffs-respondents, United States Can Company,
defendant second third-party plaintiff-respondent-
appellant; Dow Brands, et al., third-party defendants;
Dow Chemical Company, et al., second third-party
defendants-respondents.
(Index No. 6810/99)

Motion by the appellants to direct the defendant second third-party plaintiff-respondent-appellant to pay for one-half of the cost of the transcript and the joint record on an appeal and cross appeal from an order of the Supreme Court, Queens County, dated September 19, 2003. By decision and order on motion of this court dated August 11, 2004, the motion was referred to the [*3]justices hearing the appeal and the cross appeal for determination upon the argument or submission of the appeal and cross appeal.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal and cross appeal, it is

ORDERED that the motion is granted, and the defendant second third-party plaintiff-respondent-appellant is directed to pay the appellant one-half the cost of the transcript and the joint record.
SCHMIDT, J.P., SANTUCCI, RIVERA and SPOLZINO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court