| Schetty v Target Corp. |
| 2011 NY Slip Op 07626 [88 AD3d 984] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Shalini Schetty, Plaintiff, v Target Corporation et al.,Defendants/Third-Party Plaintiffs, and ITC Trading Company of America, Inc., Sued Herein asITC Trading Co., Defendant/Third-Party Defendant/Fourth-Party Plaintiff-Respondent, et al.,Third-Party Defendant. Bureau Veritas Consumer Products Services, Inc., Fourth-PartyDefendant-Appellant. |
—[*1] McLaughlin & Stern, LLP, New York, N.Y. (Paul H. Levinson and Aaron Taishoff ofcounsel), for defendant/third-party defendant/fourth-party plaintiff-respondent.
In an action to recover damages for personal injuries, the fourth-party defendant appeals froman order of the Supreme Court, Nassau County (Adams, J.), entered August 10, 2010, whichdenied its motion pursuant to CPLR 3211 (a) (1) to dismiss the fourth-party complaint.
Ordered that the order is affirmed, with costs.
The plaintiff commenced an action against Target Corporation (hereinafter Target), KennethCole Productions, L.P. (hereinafter Kenneth Cole), and ITC Trading Co. (hereinafter ITC),alleging that they negligently manufactured, sold, and distributed shoes that caused her to sufferpersonal injuries. Following the commencement of a third-party action by Target and KennethCole against, among others, ITC, ITC commenced a fourth-party action against the appellant,alleging that Target and Kenneth Cole had retained the appellant to maintain quality control andconduct inspection of the shoes being manufactured for Target and Kenneth Cole at a particularfactory in China, and to ensure that any shoes so manufactured were safe and free from anydefects or apparently dangerous conditions. The appellant thereafter moved to dismiss thefourth-party complaint based on documentary evidence (see CPLR 3211 [a] [1]).
To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidencethat forms the basis of the defense must "utterly refute[ ] plaintiff's factual allegations,conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; seeBodden v Kean, 86 AD3d 524, 526 [2011]). Here, the proffered evidence did notconclusively refute ITC's allegations that Target and/or Kenneth Cole retained the appellant tomaintain quality control and conduct inspections of the shoes, and to ensure that they were freefrom defects (see Russo vMacchia-Schiavo, 72 AD3d 786, 787 [2010]). Accordingly, the Supreme Court [*2]properly denied the appellant's motion pursuant to CPLR 3211 (a)(1) to dismiss the fourth-party complaint. Skelos, J.P., Balkin, Leventhal and Hall, JJ., concur.