| Lichtenstein v Fantastic Mdse. Corp. |
| 2007 NY Slip Op 10111 [46 AD3d 762] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Eli Lichtenstein et al., Respondents, v FantasticMerchandise Corp. et al., Appellants, et al., Defendant. (And a Third-PartyAction.) |
—[*1] McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (Richard S. Mills andBrian W. Keatts of counsel), for appellant Tatuday Well Done, Ltd. Samuel Hirsch & Associates, P.C., New York, N.Y. (Brian Isaac of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries, etc., based on strict productsliability, the defendant Fantastic Merchandise Corp. appeals, as limited by its brief, from so muchof an order of the Supreme Court, Kings County (Johnson, J.), dated May 24, 2005, as grantedthat branch of its cross motion which was pursuant to CPLR 3126 to dismiss the amendedcomplaint insofar as asserted against it on ground of spoliation of evidence only to the extent ofprecluding the plaintiffs from submitting any evidence at trial with regard to the bottle allegedlyinvolved in the infant plaintiff's injuries, and denied that branch of its motion which was forsummary judgment dismissing the third, fourth, and fifth causes of action in the amendedcomplaint insofar as asserted against it, and the defendant Tatuday Well Done, Ltd., separatelyappeals from stated portions of the same order which, inter alia, denied that branch of its motionwhich was pursuant to CPLR 2308 and 3124 to direct the nonparty Shlomo Lichtenstein toappear for a further deposition and granted that branch of its separate motion which was pursuantto CPLR 3124 and 3126 to strike the amended complaint insofar as asserted against it on theground of spoliation of evidence only to the extent of precluding the plaintiffs from submittingany evidence at trial with regard to the bottle allegedly involved in the infant plaintiff's injuries.
Ordered that the order is modified, on the law, by deleting the provision thereof [*2]granting those branches of the motion of the defendant TatudayWell Done, Ltd., and the cross motion of the defendant Fantastic Merchandise Corp., which wereto dismiss the amended complaint insofar as asserted against them on the ground of spoliation ofevidence only to the extent of precluding the plaintiffs from submitting any evidence at trial withregard to the bottle allegedly involved in the infant plaintiff's injuries, and substituting thereforprovisions granting those branches of the motion and cross motion to the extent of dismissing somuch of the first, second, third, fourth, and fifth causes of action in the amended complaintinsofar as asserted against the appellants as are based on allegations of defective design andmanufacturing defect in the subject bottle and its contents; as so modified, the order is affirmedinsofar as appealed from, with one bill of costs to the appellants.
The infant plaintiff sustained burns to his legs requiring skin grafts, allegedly as a result ofcontact with an oven cleaning product manufactured by Well Done-Eilat, Ltd., sued herein asTatuday Well Done, Ltd. (hereinafter Well Done), distributed by Fantastic Industries, Inc., suedherein as Fantastic Merchandise Corp. (hereinafter Fantastic), and sold at a retail establishmentowned and operated by Wesley Kosher, Inc.
The Supreme Court correctly found that when the infant plaintiff's father, a nonparty to theaction, gave the actual bottle of oven cleaner involved in the accident (hereinafter the subjectbottle) to a third party who later inadvertently misplaced it, he did so for the express purpose ofentrusting it to a lawyer in anticipation of litigation with respect to the infant plaintiff's injuries.In doing so, the father acted as an agent for the plaintiff mother. Therefore, the mother can becharged with notice that the subject bottle was needed for future litigation.
The Supreme Court improvidently exercised its discretion in limiting its relief and directing,as a sanction for the plaintiffs' loss of the subject bottle, that the plaintiffs only be precluded fromintroducing the subject bottle at trial should ultimately they ultimately recover it.
Well Done and Fantastic made the requisite showing that they were severely prejudiced bythe loss of the subject bottle and by their lack of an opportunity to inspect it (cf. Kirschen v Marino, 16 AD3d555, 556-557 [2005]). As the plaintiffs correctly contend, a design defect may be establishedeven in the absence of the specific instrumentality that caused a plaintiff's injuries by, inter alia,introducing into evidence other products of the same design (see Lawson v Aspen Ford, Inc., 15 AD3d 628, 629 [2005];Klein v Ford Motor Co., 303 AD2d 376, 378 [2003]; Dayal v Coinmach Indus. Co.,284 AD2d 206, 207 [2001]). Here, however, the subject bottle was one of several bottlesWell Done purchased from various bottle manufacturers, and each batch of the contents of thebottles of oven cleaner contained different concentrations of hydroxide. These circumstancesmake the loss of the subject bottle and its contents severely prejudicial to the defense, not onlywith respect to the manufacturing defect cause of action but to the design defect claim as well (cf. Kirschen v Marino, 16 AD3d555, 556 [2005]; Lawson v Aspen Ford Inc., 15 AD3d at 629). In addition, by theSupreme Court's decision only to preclude the plaintiffs from introducing the subject bottle attrial should they recover it, Well Done and Fantastic have been prevented from establishing thatdamage to the subject bottle after it was shipped, if any, rather than a defective manufacturing ordesign of the subject bottle, was the proximate cause of the infant plaintiff's injuries (seeSquitieri v City of New York, 248 AD2d 201, 203-204 [1998]). Accordingly, the sanction ofdismissal of so much of the first, second, third, fourth, and fifth causes of action in the amendedcomplaint as allege defective design and manufacturing defects in the subject bottle or itscontents, insofar as asserted against Well Done and Fantastic, is warranted.[*3]
The Supreme Court properly determined that Well Donefailed to demonstrate the need to further depose nonparty Shlomo Lichtenstein, the infantplaintiff's father.
The Supreme Court properly denied summary judgment to Fantastic with respect to the thirdcause of action alleging failure to warn. Fantastic demonstrated its prima facie entitlement tojudgment as a matter of law on that issue. However, in opposition, the plaintiffs' expert raised atriable issue of fact as to the adequacy of the warnings on the label of the subject product byopining that 16 CFR 1500.3 (b) (14) (i) (C) was the applicable federal regulation and that itmandated labeling of the subject product with the word "DANGER," a warning the subjectproduct lacked (see generally Sabbatino v Rosin & Sons Hardware & Paint, 253 AD2d417, 418 [1998]). Moreover, even without considering the expert's affidavit, the plaintiffs raisedtriable issues of fact precluding summary judgment with respect to the failure to warn claim."[I]n cases where reasonable minds might disagree as to the extent of a plaintiff's knowledge ofthe hazard, the question is one for the jury" (Liriano v Hobart Corp., 92 NY2d 232, 241[1998]). The plaintiff mother's deposition testimony demonstrated that she equated the subjectproduct with other "typical household cleaners" like Windex and did not appreciate theseriousness of the hazards it posed. Therefore, there is an issue of fact as to whether she wasmade fully aware of the specific hazard that caused the infant plaintiff's injuries, namely, thedanger of burns to the skin upon contact with the subject product (see Montufar v ShivaAutomation Serv., 256 AD2d 607, 607-608 [1998]; cf. Theoharis v Pengate HandlingSys. of N.Y., 300 AD2d 884, 885 [2002]; Mangano v United Finishing Serv. Corp.,261 AD2d 589, 590 [1999]; Schiller v National Presto Indus., 225 AD2d 1053, 1054[1996]; see also Billiar v Minnesota Min. & Mfg. Co., 623 F2d 240 [1980]). Further, theplaintiff mother testified at her deposition that additional or more conspicuous warnings wouldhave alerted her to the potential for contact burns from the subject product, thus raising an issueof fact as to whether the alleged lack of adequate warnings on the subject bottle was theproximate cause of the infant plaintiff's injuries (see Johnson v Johnson Chem. Co., 183AD2d 64, 70 [1992]).
Well Done's remaining contentions are without merit. Schmidt, J.P., Crane, Krausman andDickerson, JJ., concur.