Opinion
21752/2007.
Decided February 16, 2011.
Sullivan Papain Block, McGrath Cannavo, PC, New York, NY, Attorney for Plaintiff.
Pool Service, Inc. and Philip Seimann: Wade Clark Mulcahy, Esq., New York, New York, Attorney for Defendant Northway.
Jacuzzi Spas International: Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, New York, Attorney for Defendant.
Upon the following papers numbered 1 to 30 read on this motion for summary judgment: Notice of Motion and supporting papers, 1 — 16; Answering Affidavits and supporting papers, 17 — 28, 29 — 30; Other, memorandum of law, 13.
By order dated October 7, 2010, this Court (Rebolini, J.) denied defendant Jacuzzi Spas International's prior application for summary judgment, without prejudice to renewal upon submission of copies of the pleadings.
The plaintiff commenced this action to recover damages for wrongful death and personal injuries allegedly sustained by the decedent due to a design defect in a hot tub manufactured by the defendant Jacuzzi Spas International (Jacuzzi) and serviced or repaired by defendants Northway Pool Services, Inc. and Philip Seimann (collectively Northway). The plaintiff sets forth causes of action concerning a certain Jacuzzi hot tub, (Imperial Spas) model number 7570, serial number 94874, the use of which allegedly caused the death of the plaintiff's decedent due to the failure of Jacuzzi to install an interlock device or other safety device to prevent the operation of the hot tub while certain temperature sensors were disconnected therefrom. Following the death, the Suffolk County Police Department took readings which indicated that the water in the hot tub exceeded the recommended temperatures for safe use. Thereafter, the Suffolk County Medical Examiner determined that the decedent died from acute hyperthermia.
The plaintiff alleges two causes of action against Jacuzzi. The first alleges that the hot tub was improperly designed without a fail-safe or interlock system to prevent use of the hot tub after the intentional or unintentional removal of its temperature sensors. The second alleges that Jacuzzi failed to adequately train and monitor the actions of the repairmen that it recommends to the public. In addition, the plaintiff alleges a single cause of action against Northway for negligent repair work on the hot tub.
Jacuzzi now moves for summary judgment dismissing the complaint as well as all cross claims against it.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v. City of New York, 49 NY2d 557). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( see, Alvarez v. Prospect Hosp., 68 NY2d 320; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851).
A plaintiff injured by an alleged defective product seeking damages under a negligence theory must, as in any negligence action, establish the existence of a legal duty of care, a breach of that duty and damages resulting from such breach ( see, Micallef v. Miehle Co., 39 NY2d 376; see generally Pulka v. Edelman, 40 NY2d 781; Luina v. Katharine Gibbs School NY , 37 AD3d 555 [2nd Dept., 2007]). A manufacturer is under a nondelegable duty to design and produce a product that is not defective, and a defectively designed product is one which "is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use" ( Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471).
In support of its motion, Jacuzzi submits the pleadings, the plaintiff's deposition testimony, the deposition testimony of a non-party witness, a copy of the Suffolk County Police Department investigative report and an affidavit of a professional engineer. The non-party witness, Robert Wass (Wass), investigated the accident for the Suffolk County Medical Examiner. He was deposed on March 18, 2009, regarding his findings that a water temperature sensor (TS) and a high limit sensor (HTS) were found disconnected from the hot tub after the accident. The TS gives a reading of the water temperature in the hot tub and shuts the tub down if the water temperature gets above 120 degrees. The HTS senses the temperature of the water heater unit and shuts down the tub if it gets above 125 degrees. The Court notes that Wass's deposition is unsigned and that Jacuzzi has failed to submit proof that the transcript was forwarded to the witness for his review ( see, CPLR § 3116 [a]). Under the circumstances, the deposition testimony of Wass is not in admissible form ( see, Marmer v. IF USA Express , 73 AD3d 868 [2nd Dept., 2010]; Martinez v. 123-16 Liberty Ave. Realty Corp. , 47 AD3d 901 [2nd Dept., 2008]; McDonald v. Mauss , 38 AD3d 727 [2nd Dept., 2007]). Even if such deposition testimony was considered, it does not contradict the plaintiff's theory of the case.
In addition, the unauthenticated copy of the Suffolk County Police Department investigative report is plainly inadmissible and has not been considered by the Court in making this determination ( see, Mooney v. Osowiecky, 235 AD2d 603 [3rd Dept., 1997]; Szymanski v. Robinson, 234 AD2d 992 [4th Dept., 1996]; Aetna Cas. Sur. Co. v. Island Transp. Corp., 233 AD2d 157 [1st Dept., 1996]; Cadieux v. D.B. Interiors, 214 AD2d 323 [1st Dept., 1995]).
The affidavit of Peter J. Poczynok, P.E., submitted by Jacuzzi, is deficient on its face in that it was notarized in the State of Illinois and was not accompanied by a certificate verifying that the manner in which it was taken conforms with Illinois law ( see, CPLR § 306 [d], § 2309 [c]; Real Property Law § 299-a; PRA III v. Gonzalez , 54 AD3d 917 [2nd Dept., 2008]). Absent a certificate of conformity, the affidavit is, in effect, unsworn ( see, Worldwide Asset Purch. v. Simpson, 17 Misc 3d 1128[A] [Auburn City Ct., 2007]). Accordingly, the affidavit has not been considered herein. Even if said affidavit was considered, it does not establish Jacuzzi's entitlement to summary judgment in this action. Jacuzzi's contention is that the sensors are safety devices which, when modified, destroyed the utility of a key safety feature, relieving it of any responsibility in this action ( see, Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471; Patino v. Lockformer Co., 303 AD2d 731 [2nd Dept., 2003]). There are a number of material issues of fact, including whether the temperature sensors are key safety devices or part of the circuitry of the hot tub and whether the sensors were physically disconnected or became disconnected by mere use of the hot tub. Furthermore, Jacuzzi has not submitted any evidence regarding the plaintiff's cause of action alleging that it failed to adequately train and monitor the actions of the repairmen that it recommends to the public.
Inasmuch as Jacuzzi failed to establish its prima facie entitlement to summary judgment, it was unnecessary to consider the sufficiency of the opposition papers ( see generally, Calandra v. Crane Plumbing , 54 AD3d 655 [2nd Dept., 2008]).
Accordingly, it is
ORDERED that the renewed motion by defendant Jacuzzi Spas International for an order pursuant to CPLR § 3212 granting summary judgment dismissing the complaint as well as all cross claims against it is denied.