| Quinones v Federated Dept. Stores, Inc. |
| 2012 NY Slip Op 01597 [92 AD3d 931] |
| February 28, 2012 |
| Appellate Division, Second Department |
| John Quinones et al., Plaintiffs, v Federated DepartmentStores, Inc., et al., Appellants, and Beechwood Mountain, LLC, Respondent, et al.,Defendant. |
—[*1] Edward Garfinkel (McGaw, Alventosa & Zajac, Jericho, N.Y. [James K. O'Sullivan], ofcounsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, etc., the defendantsFederated Department Stores, Inc., and Macy's East, Inc., appeal from an order of the SupremeCourt, Kings County (Schmidt, J.), dated May 11, 2011, which denied their motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsFederated Department Stores, Inc., and Macy's East, Inc., for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them is granted.
On August 3, 2004, a cooking demonstration was held in the Cellar at a Macy's departmentstore in Manhattan. A group of wooden folding chairs had been set up for customers to view thedemonstration. As John Quinones (hereinafter the plaintiff) sat in a chair, it collapsed, allegedlycausing him to sustain personal injuries. The plaintiff, with his wife suing derivatively,commenced this action against Federated Department Stores, Inc., and Macy's East, Inc.(hereinafter together Macy's), Beechwood Mountain, LLC (hereinafter Beechwood), andBroadway Famous Party Rental (hereinafter Broadway), alleging negligence, breach of warranty,and strict liability. Macy's moved for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it, and the Supreme Court denied the motion.
" '[L]iability may not be imposed for breach of warranty or strict products liability upon aparty that is outside the manufacturing, selling, or distribution chain' " (Spallholtz v HamptonC.F. Corp., 294 AD2d 424 [2002], quoting Joseph v Yenkin Majestic Paint Corp.,261 AD2d 512, 512 [1999]). Here, Macy's established its prima facie entitlement to judgment asa matter of law dismissing the causes of action alleging breach of warranty and strict liability bydemonstrating that it was outside the manufacturing, selling, or distribution chain. The subjectchair was sold by a Bulgarian company to Beechwood, which sold it to Broadway, which sold itto Macy's, which used the chair [*2]for its customers to viewcooking demonstrations. In opposition to this prima facie showing, Beechwood, the only partyopposing the motion, failed to raise a triable issue of fact (see generally Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
Further, Macy's demonstrated its prima facie entitlement to judgment as a matter of lawdismissing the cause of action alleging negligence by submitting evidence establishing that itneither created nor had notice, actual or constructive, of the defective condition of the chair (see Miles v Hicksville U.F.S.D., 56AD3d 625, 625-626 [2008]; Loiacono v Stuyvesant Bagels, Inc., 29 AD3d 537, 538 [2006]; Levinstim v Parker, 27 AD3d 698[2006]). In opposition, Beechwood failed to raise a triable issue of fact. Beechwood's contentionthat the doctrine of res ipsa loquitur applies to this case, raised for the first time on appeal, is notproperly before this Court (see Doize vHoliday Inn Ronkonkoma, 6 AD3d 573, 574 [2004]; Oliveri v Oliveri, 251AD2d 561 [1998]).
Accordingly, the Supreme Court should have granted Macy's motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it. Dillon, J.P., Florio,Chambers and Lott, JJ., concur.