| Vereczkey v Sheik |
| 2008 NY Slip Op 09588 [57 AD3d 523] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Nicole Paige Vereczkey, Respondent-Appellant, v JamshidSheik et al., Defendants, Harbor Plumbing and Heating Supply, LLC, et al., Respondents, and RheemManufacturing Company et al., Appellants-Respondents. (And a Third-PartyAction.) |
—[*1] The Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y. (Leslie D. Kelmachter of counsel), forrespondent-appellant. DLA Piper US LLP, New York, N.Y. (Robert A. Assuncao, Stephen P. McLaughlin, and JamesS. Coons of counsel), for respondents.
In an action to recover damages for personal injuries, the defendants Rheem ManufacturingCompany and A.F. Rockland Plumbing Supply Corp., appeal, as limited by their brief, from so much ofan order of the Supreme Court, Westchester County (Smith, J.), dated October 13, 2006, as deniedthose branches of their motion which were for summary judgment dismissing the causes of actionalleging a manufacturing defect and strict products liability predicated on a manufacturing defect insofaras asserted against them, and the plaintiff cross-appeals from so much of the same order as grantedthose branches of the motion of the defendants Rheem Manufacturing Company and A.F. RocklandPlumbing Supply Corp. which were for summary judgment dismissing the causes of action alleging,among other things, breach of implied warranty, defective design of a hot water heater, and failure towarn insofar as asserted against them, and granted those branches of the separate motion of thedefendants Harbor Plumbing and Heating Supply, LLC, Masco Corporation, Masco Corporation ofIndiana, doing business as Delta Faucet Company, and Fore-Kast Sale Co., Inc., which were forsummary judgment dismissing the complaint insofar as asserted against Harbor Plumbing and HeatingSupply, LLC, and Masco Corporation of Indiana, doing business as [*2]Delta Faucet Company.
Ordered that the cross appeal from so much of the order as granted that branch of the motion ofthe defendants Rheem Manufacturing Company and A.F. Rockland Plumbing Supply Corp. which wasfor summary judgment dismissing the cause of action alleging failure to warn insofar as asserted againstthem is dismissed as academic, in light of our determination on a companion appeal (see Vereczkeyv Sheik, 57 AD3d 527 [2008]); and it is further,
Ordered that the order is affirmed insofar as reviewed, with one bill of costs payable by the plaintiffto the defendants Harbor Plumbing and Heating Supply, LLC, and Masco Corporation of Indiana,doing business as Delta Faucet Company.
On February 27, 2002 the plaintiff, born on August 7, 1999, reached into the bathtub in theapartment where she resided with her mother. The bathtub contained scalding water which caused herto sustain serious burns.
The plaintiff sued, among others, (1) Harbor Plumbing and Heating Supply, LLC (hereinafterHarbor), which allegedly sold a faucet cartridge to the defendant Jerry Pugliese, who installed it in thebathtub, (2) Masco Corporation of Indiana, doing business as Delta Faucet Company (hereinafterDelta), which manufactured the faucet cartridge, (3) Rheem Manufacturing Company (hereinafterRheem), which manufactured a hot water heater, and (4) A.F. Rockland Plumbing Supply Corp.(hereinafter AF), which distributed the hot water heater. The causes of action at issue on this appealrelate to the faucet cartridge and the hot water heater. The plaintiff alleged, inter alia, that theseproducts were defectively designed, manufactured, and marketed, and the manufacturers anddistributors of these products were liable based upon, among other things, defective design anddefective manufacture, breach of implied warranty, and failure to warn.
After issue was joined, Rheem and AF moved, inter alia, for summary judgment dismissing thecomplaint insofar as asserted against them. Harbor and Delta, as alleged distributor and manufacturer ofthe faucet cartridge, together with the defendants Masco Corporation (hereinafter Masco) andFore-Kast Sales Co., Inc. (hereinafter Fore-Kast), separately moved for summary judgment dismissingthe complaint insofar as asserted against them. The Supreme Court, inter alia, denied those branches ofthe motion of Rheem and AF which were for summary judgment dismissing the causes of action alleginga manufacturing defect and strict products liability predicated on a manufacturing defect insofar asasserted against them, and granted those branches of their motion which were for summary judgmentdismissing the remaining causes of action alleging, among other things, breach of implied warranty,defective design of the hot water heater, and failure to warn insofar as asserted against them. TheSupreme Court also granted those branches of the motion of Delta, Harbor, Masco, and Fore-Kastwhich were for summary judgment dismissing the complaint insofar as asserted against Harbor andDelta. We affirm the order insofar as reviewed.
Rheem and AF failed to establish their entitlement to judgment as a matter of law with respect tothe alleged manufacturing defect in the hot water heater. The thermostat, hot water heater, and allcomponent parts were sold as a set (cf.Cleary v Reliance Fuel Oil Assoc., Inc., 17 AD3d 503 [2005], affd 5 NY3d 859[2005]). Rheem's expert witness, Jacob Hall, testified at his deposition that the original calibration [*3]of the thermostat appeared to be intact, but that the temperature of thewater in the tank was nevertheless 25 degrees hotter than the thermostat indicated. Further, Hall statedthat the hot water heater was designed to heat water to a maximum of 160 degrees Fahrenheit.However, when the plaintiff's expert, Daniel Misa, measured the temperature of the water from thebathtub faucet, he noted that the temperature of the water rose to in excess of 171 degrees Fahrenheit.Accordingly, Rheem and AF failed to establish, prima facie, that their product was not defective when itleft their control (see Ramos v HowardIndus., Inc., 10 NY3d 218, 224 [2008]). Moreover, they did not establish that the accidentwas caused by something other than a manufacturing defect in the product (id.; see Spellerv Sears, Roebuck & Co., 100 NY2d 38, 42 [2003]; Koslow v Zenith Electronics Corp., 45 AD3d 810 [2007]; Riglioni v Chambers Ford Tractor Sales, Inc.,36 AD3d 785, 786 [2007]; D'Auguste v Shanty Hollow Corp., 26 AD3d 403, 404 [2006]). At best,they established that there were concurrent causes of the accident which would not absolve them ofliability (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]; Kalam v K-MetalFabrications, 286 AD2d 603 [2001]).
However, with respect to the plaintiff's claim of a design defect in the hot water heater, and breachof implied warranty on the ground that the design was "not minimally safe for its expected purpose,"Rheem and AF established their entitlement to judgment as a matter of law and the plaintiff failed toraise a triable issue of fact (see Denny v Ford Motor Co., 87 NY2d 248, 257, 259 [1995];Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108 [1983]).
Further, Harbor and Delta established their entitlement to judgment as a matter of law with respectto all causes of action insofar as asserted against them, and the plaintiff failed to raise a triable issue offact. With respect to the cause of action alleging failure to warn against those defendants, there werewarnings embossed into the parts themselves. The alleged failure to include instructions in the packagingdid not raise a triable issue of fact since the inclusion of instructions would not have affected the conductof the defendant Jerry Pugliese, who installed the faucet cartridge (see Haggerty v Wyeth Ayerst Pharms., 11 AD3d 511, 513 [2004];Guadalupe v Drackett Prods. Co., 253 AD2d 378 [1998]).
The parties' remaining contentions are without merit. Spolzino, J.P., Lifson, Dickerson andChambers, JJ., concur.