Opinion
4087-10
03-28-2012
Donald R. Cohen, Individually and as Executor of the Estate of SUSAN G. COHEN, Deceased , Plaintiff, v. Fairbank Reconstruction Corporation d/b/a FAIRBANK FARMS; THE PRICE CHOPPER INC. d/b/a PRICE CHOPPER; THE GOLUB CORPORATION; and GREATER OMAHA PACKING COMPANY, INC., Defendants.
Tabner, Ryan and Keniry, LLP Attn: William J. Keniry, Esq. Attorneys for Plaintiff Nixon Peabody Attn: Jena R. Rotheim, Esq. Attorneys for Defendant Fairbank Reconstruction Corporation d/b/a Fairbank Farms Gass, Weber Mullins, LLC Attn: Robert Weber, Esq. Attorneys for Defendant Fairbank Reconstruction Corporation d/b/a Fairbank Farms Carter, Conboy, Case, Blackmore, Maloney & Laird Mackenzie Monaco, Esq. Attorneys for Defendants The Price Chopper Inc., Price Chopper Operating Co., Inc. D/b/a Price Chopper, The Golub Corporation Burke, Scolamiero, Mortati & Hurd, LLP Attn: Peter Balouskas, Esq. Attorneys for Defendant Greater Omaha Packing Company, Inc.
Tabner, Ryan and Keniry, LLP
Attn: William J. Keniry, Esq.
Attorneys for Plaintiff
Nixon Peabody
Attn: Jena R. Rotheim, Esq.
Attorneys for Defendant Fairbank Reconstruction
Corporation d/b/a Fairbank Farms
Gass, Weber Mullins, LLC
Attn: Robert Weber, Esq.
Attorneys for Defendant Fairbank Reconstruction
Corporation d/b/a Fairbank Farms
Carter, Conboy, Case, Blackmore, Maloney & Laird
Mackenzie Monaco, Esq. Attorneys for Defendants The Price Chopper Inc., Price Chopper
Operating Co., Inc. D/b/a Price Chopper, The Golub Corporation
Burke, Scolamiero, Mortati & Hurd, LLP
Attn: Peter Balouskas, Esq.
Attorneys for Defendant Greater Omaha Packing Company, Inc.
, J.
On October 13, 2009 Susan Cohen died from her consumption of ground beef contaminated with E. Coli 0157:H7. Her husband (hereinafter "Plaintiff"), individually and as her executor, commenced this action as a result.
Plaintiff's amended complaint alleges that the tainted ground beef Ms. Cohen consumed was initially manufactured and sold by Greater Omaha Packing Company, Inc. (hereinafter "GOPC") to Fairbank Reconstruction Corporation (hereinafter "Fairbank"). Such ground beef was then allegedly processed by Fairbank and distributed to a Price Chopper retail grocery store, where it was purchased by Plaintiff. Issue was joined by all Defendants in this action. Discovery has been conducted, is complete and a jury trial date certain has been set.
A grocery store owned and operated by Price Chopper Operating Co., Inc. or The Golub Corporation, which are hereinafter referred to collectively as "Price Chopper."
Fairbank, Plaintiff and GOPC all move for summary judgment, and opposes each other's motions. Price Chopper also opposed Plaintiff's motion. Because Fairbank and GOPC failed to establish their entitlement to summary judgment, their motions are denied. Plaintiff's motion is similarly defective, except he did establish his entitlement to judgment as a matter of law against Fairbank.
As is well established a "movant for summary judgment... [has] the initial burden of making a prima facie showing of entitlement to judgment as a matter of law." (Augur v Augur 90 AD3d 1111 [3d Dept. 2011]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The movant is obligated to "proffer[] evidentiary proof in admissible form" (Lockwood v Layton, 79 AD3d 1342, 1342 [3d Dept 2010]) and its "burden may not be met by pointing to gaps in... proof." (DiBartolomeo v St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept. 2010]; Antonucci v Emeco Industries, Inc., 223 AD2d 913 [3d Dept.1996]). Moreover, "the proof [is considered] ... in the light most favorable to the nonmovant." (Town of Santa Clara v Yanchitis, 90 AD3d 1297 [3d Dept. 2011]).
If the movant establishes their right to judgment as a matter of law, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact. (Zuckerman v. City of New York, 49 NY2d 557 [1980]).
Considering Fairbank's motion first, it seeks summary judgment granting its cross-claim for indemnification against GOPC, due to the collateral estoppel effect of issues determined in two related Federal Court actions.
Long v. Fairbank, No. 1:09—cv-592 and Smith v. Fairbank, 2:10-cv-60 will hereinafter be collectively referred to as "Long/Smith."
"The equitable doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party." (Gadani v DeBrino Caulking Assoc., Inc., 86 AD3d 689, 691-92 [3d Dept 2011]; Ryan v New York Tel. Co., 62 NY2d 494, 501 [1984]; Martin v Rosenzweig, 70 AD3d 1112 [3d Dept 2010]).
In support of its motion, Fairbank offers its attorney's affirmation with supporting documentary evidence. He was also their counsel in the Long/Smith actions, and makes his collateral estoppel allegations based upon his personal knowledge.
Fairbank established, as is conceded, that Ms. Cohen and the Long/Smith plaintiffs were all injured by E. coli 0157:H7. Each of their injuries, along with many others , were traced back to Fairbank's processing facility by the United States Department of Agriculture (hereinafter "USDA"). At the time Fairbank processed the E. coli 0157:H7 contaminated beef at issue in this and the Long/Smith actions, one of its beef suppliers was GOPC.
This cluster of E. coli 0157:H7 injuries is described as the "Northeast Outbreak."
In the Long/Smith actions Fairbank settled plaintiffs' claims against it and "elected to proceed to trial [against GOPC] on only one claim: Indemnification and hold harmless agreement between the parties." (Long v Fairbank Farms Reconstruction Corp., 1:09-CV-592-GZS, 2011 WL 5117795, 3 [D Me Oct. 25, 2011]). The agreement at issue noted above, referred to as the "Fairbank Guarantee," covered GOPC's sale of raw beef trim to Fairbank at the time it processed the E. coli 0157:H7 contaminated beef. The Court in the Long/Smith actions found that the "Fairbank Guarantee constituted the parties' effective agreement with respect to the subject matter of contractual indemnification." (Long v Fairbank Farms, Inc., 1:09-CV-592-GZS, 2011 WL 2516378 [D Me May 31, 2011] amended, 1:09-CV-592-GZS, 2011 WL 2490950 [D Me June 22, 2011] and affd sub nom. Smith v Fairbank Farms, Inc., 2:10-CV-60-GZS, 2011 WL 2669205 [D Me July 7, 2011] and affd, 1:09-CV-592-GZS, 2011 WL 2669199 [D Me July 7, 2011]). Additionally, the Long/Smith Court found "that under the terms of the Fairbank Guarantee, as construed under New York law, GOPC may not avoid or limit its indemnification [of Fairbank] by proving that Fairbank's negligence contributed to the personal injuries that were the subject of the Long and Smith settlements." (Long v Fairbank Farms Reconstruction Corp., 2011 WL 5117795, 4).
The Long/Smith actions then proceeded to trial, with judgment entered for Fairbank against GOPC. The following four special verdict questions were all answered by the jury affirmatively.
1. Do you find that GOPC delivered adulterated raw beef containing E. coli 0157:H7 to Fairbank in September 2009? - Yes
2. Do you find that Fairbank acted as a reasonable buyer in using the adulterated raw beef
delivered by GOPC in September 2009? - Yes
3. Do you find that this same adulterated raw beef, which was ground by Fairbank, was later consumed by Long causing her injuries and resulting in her receipt of a settlement of $100,000? - Yes
4. Do you find that this same adulterated raw beef, which was ground by Fairbank, was later consumed by Smith causing her injuries and resulting in her receipt of a settlement of $400,000? - Yes
Even accepting the above findings of the Long/Smith actions as collaterally estopping GOPC from contesting them in this action, these facts do not establish Fairbank's entitlement to judgment on its indemnification cross-claim. Such cross-claim depends, in part, upon Fairbank establishing that GOPC supplied it with the E. Coli 0157:H7 contaminated beef that caused Ms. Cohen's death. However, there is simply no identity of issue between the Long/Smith actions' findings and Ms. Cohen's consumption of E. Coli 0157:H7 contaminated beef. Ms. Cohen's consumption and injury were neither at issue in the Long/Smith actions nor material to that action. Instead, they are wholly irrelevant. Nor is there any logical basis to equate, as identical, Ms. Cohen's adulterated beef consumption and the Long/Smith plaintiffs' consumption of tainted beef. Simply put, GOPC's delivery to Fairbank of the E. coli 0157:H7 contaminated beef that sickened the Long/Smith plaintiffs, does not necessarily prove that Fairbank used GOPC's tainted beef in processing the contaminated beef Ms. Cohen ingested.
Fairbank similarly failed to proffer sufficient facts to demonstrate, as a matter of law, that GOPC supplied it with the E. coli 0157:H7 contaminated beef that caused Ms. Cohen's death. Importantly, Fairbank proffers no expert affidavit to establish the connection, and its attorney' affirmation is of no probative value on this issue. (Groboski v. Godfroy, 74 AD3d 1524 [3d Dept. 2010]). Instead Fairbank relied upon a USDA document, trial testimony excerpts and a deposition testimony excerpt.
On such record, although it is uncontested that Ms. Cohen and the Long/Smith actions' plaintiffs were all injured by tainted beef Fairbank processed, Fairbank failed to establish that it received all of that contaminated beef from GOPC. The USDA's inclusion of all three Plaintiffs within its Northeast Outbreak table is, by itself, insufficient to establish Fairbank's supplier. The trial testimony excerpts are similarly insufficient. Fairbank first offered an excerpt of Biela's trial testimony, which excluded his background and qualifications. Nor was the entire testimony provided, precluding this Court's review of his allegations in context. While his assertion that the individuals listed in the USDA table were injured by a pathogen with the same genetic strain, such allegation does not necessarily exclude, without more, multiple suppliers of that same pathogen contaminated beef. Nor does it establish GOPC as Fairbank's supplier of contaminated beef. Next, Fairbank offered four pages of tial testimony from an unnamed individual whose background and qualifications were absent. Such proffer provides no probative proof. Fairbank's proffer of Dr. Melnick's trial testimony excerpt is likewise unavailing. Again, because this excerpt cannot be viewed in context its efficacy is limited. While Melnick's testimony established his expert qualifications and that, in his opinion, Fairbank obtained the Northeast Outbreak contaminated beef from GOPC, it did not submit any of the documentary evidence Melnick relied upon. "Opinion evidence must be based upon facts in the record or personally known to the witness... and, given the foregoing... [Melnick's testimony excerpt is] of minimal probative value." (Jones v G & I Homes, Inc., 86 AD3d 786, 789 [3d Dept 2011], quoting Davis v. Pimm, 228 AD2d 885 [3d Dept. 1996], lv. denied 88 NY2d 815[1996][citations and quotation mark's omitted]). Lastly, Fairbank's submission of an unsigned and uncertified deposition transcript excerpt is of no evidentiary value. (Marks v Robb, 90 AD3d 863 [2d Dept. 2011]; Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 ; In re Delgatto, 82 AD3d 1230 [2d Dept. 2011]). Considering the foregoing in a light most favorable to GOPC, Fairbank failed to demonstrate its entitlement to judgment as a matter of law.
Fairbank's Executive Vice President of Food Safety and Quality Assurance.
To the extent Fairbank attempted to supplement its initial moving papers with its reply, such proffer is improper and rejected. (2 North Street Corp. v. Getty Saugerties Corp., 68 AD3d 1392 [3d Dept. 2009]).
Moreover, even if Fairbank met its prima facia burden, GOPC's opposition raised a material issue of fact concerning the E. coli 0157:H7 contaminated beef source. GOPC submitted an additional excerpt of Melnick's trial testimony. He admitted that one patient in California, who had consumed no beef, matched the Northeast Outbreak's "PFGE, pulse field gel electrophoresis" findings. A PFGE test establishes the "genetic makeup of the material" tested, in this case E. coli 0157:H7. As correctly emphasized by GOPC, Fairbank neither addressed such finding nor demonstrate how its "pathogen with the same genetic strain" argument withstands such fact. As such, GOPC raised a triable issue of fact.
While GOPC correctly noted Fairbank's failure to support its motion with a copy of the pleadings as required by CPLR §3212(b), as GOPC and Plaintiff both submitted copies of the pleadings this "procedural defect may be overlooked... [because] the record is sufficiently complete." (Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept. 2005], quoting Greene v Wood, 6 AD3d 976 [3d Dept. 2004][internal quotation marks omitted]).
This was established by Biela's trial transcript excerpt.
Accordingly, Fairbank's summary judgment motion is denied.
Turning next to Plaintiff's motion for summary judgment on his strict liability claims, while he demonstrated his entitlement to judgment as a matter of law against Fairbank, he did not proffer sufficient proof in support of his motion against GOPC or Price Chopper.
In support of his summary judgment motion against Fairbank, Plaintiff proffers these two parties' "Stipulation as to Source of Bacteria," dated September 1, 2011 (hereinafter "Stipulation"). By the Stipulation, Fairbank concedes that "[t]he E. coli 0157:H7 bacteria strain that was within Ms. Cohen's body and consumed by her was carried on ground beef processed by Fairbank Farms on September 16, 2009." Fairbank further admitted that "[Ms.] Cohen was infected with a strain of E. coli 0157:H7... which was traced back to Fairbank." Due to such Stipulation and admission, Plaintiff met his "burden to show that a defect in [Fairbank's] product was a substantial factor in causing [Ms. Cohen's] injury and... that the defect complained of[, E. coli 0157:H7,] existed at the time the product left" Fairbank's facility. (Tardella v RJR Nabisco, Inc., 178 AD2d 737 [3d Dept. 1991]; Nichols v Agway, Inc., 280 AD2d 889 [4th Dept 2001]; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 NY2d 376 [1976]). As such, Plaintiff established his entitlement to judgment as a matter of law against Fairbank.
With the burden shifted, Fairbank raised no triable issue of fact. Fairbank proffers a portion of Ms. Cohen's medical records and an unsigned uncertified excerpt of Plaintiff's deposition transcript. First, the transcript is of no evidentiary value. (Marks v Robb, supra; Martinez v. 123-16 Liberty Ave. Realty Corp., supra; In re Delgatto, supra). Second, while Ms. Cohen's medical records note a "Hx of eating raw meat" and "raw hamburger intake," Fairbank provided no explanation for the notations. Without clarification the notes are inadmissible hearsay, and fail to raise an issue of fact. (Raczes v Horne, 68 AD3d 1521 [3d Dept. 2009]; Davis v Golub Corp., 286 AD2d 821 [3d Dept. 2001]).
Accordingly, Plaintiff's motion for summary judgment against Fairbank is granted.
Plaintiff failed to establish, however, his entitlement to summary judgment against GOPC or Price Chopper.
To support his motion against Price Chopper, Plaintiff relies solely upon an unsigned and uncertified excerpt of a deposition transcript and an exhibit from such deposition. However, contrary to Plaintiff's claim, such excerpt does not establish that Ms. Cohen was injured by E. coli 0157:H7 contaminated beef purchased at Price Chopper because it is of no evidentiary value. (Marks v Robb, supra; Martinez v. 123-16 Liberty Ave. Realty Corp., supra; In re Delgatto, supra). Relatedly, the proffered exhibit which purportedly lists Price Chopper's beef supplier's in September 2009, fails to establish that the contaminated beef that injured Ms. Cohen was purchased at Price Chopper.
Plaintiff similarly failed to sufficiently support its summary judgment motion against GOPC. Plaintiff proffered no independent proof that Ms. Cohen was injured by beef GOPC distributed. Instead, Plaintiff relied entirely upon Fairbank's summary judgment motion's proof. As such, just as Fairbank failed to proffer sufficient proof, Plaintiff too failed to properly support its motion against GOPC.
Accordingly, that portion of Plaintiff's motion for summary judgment against Price Chopper and GOPC is denied.
Turning next to GOPC's motion for summary judgment, it also failed to establish its entitlement to summary judgment dismissing Plaintiff's complaint and Fairbank's cross-claims.
GOPC supported its motion with four unsigned and uncertified deposition transcript excerpts, not one of which is of any evidentiary value. (Marks v Robb, supra; Martinez v. 123-16 Liberty Ave. Realty Corp., supra; In re Delgatto, supra). Similarly, its attorney' affirmation, which is not based upon personal knowledge, is of no probative value. (Groboski v. Godfroy, 74 AD3d 1524 [3d Dept. 2010]).This leaves GOPC's motion supported only by a number of Price Chopper documents.
On this record, GOPC failed to meet its prima facie burden. GOPC argues that the Price Chopper documentation contains a gap in Plaintiff and Fairbank's trace back proof. It specifies missing data in Price Chopper's grind production log and warehouse shipping records, claiming that this void precludes tracing Ms. Cohen's ingestion of E. coli 0157:H7 contaminated beef back to GOPC. Even accepting such facts as true, it is insufficient to meet GOPC's initial summary judgment burden. "In the case of a defendant who denies having manufactured an allegedly defective product, the burden is met when the defendant supports its summary judgment motion with affirmative evidence that it did not manufacture the product that caused the injury." (Antonucci v Emeco Indus., Inc., supra at 914; Clark v. Globe Business Furniture Inc., 237 AD2d 846 [3d Dept. 1997]). Contrary to GOPC's showing, its "burden [is not] met by pointing to gaps in plaintiffs' proof." (Antonucci v Emeco Indus., Inc., supra at 914). Because GOPC supported its motion with no affirmative evidence showing that it did not manufacture the E. coli 0157:H7 contaminated beef that injured Ms. Cohen, it failed to demonstrate its entitlement to judgment as a matter of law dismissing Plaintiff's strict product liability claim or Fairbank's cross-claim.
Trace back proof meaning the proof required to trace the E. coli 0157:H7 contaminated beef that Ms. Cohen ingested back to GOPC.
GOPC similarly failed to establish its entitlement to dismissal of Plaintiff's express warranty cause of action. "Under the UCC, any description of the goods, or affirmation of fact or promise relating to the goods, which is made part of the basis of the bargain creates an express warranty that the goods shall conform to such description, affirmation or promise (see UCC 2—313 [1][a], [b])." (Nigro v. Lee, 63 AD3d 1490, 1491 [3d Dept. 2009]). On this record, GOPC wholly failed to proffer any admissible proof to establish that it made no promise relied upon by Plaintiff or Ms. Cohen. As such, GOPC failed to properly establish its entitlement to judgment as a matter of law dismissing Plaintiff's express warranty cause of action.
Nor has GOPC established its entitlement to summary judgment of Plaintiff's implied warranty of fitness (UCC §2-315) and implied warranty of merchantability (UCC §2-314) claims. Contrary to GOPC's contention, these implied warranty claims are neither the same claim nor duplicitous. (Bimini Boat Sales, Inc. v Luhrs Corp., 69 AD3d 782 [2d Dept. 2010]). Moreover, GOPC proffers no admissible proof to establish its entitlement to summary judgment dismissing either claim.
GOPC likewise failed to demonstrate, as a matter of law, its entitlement to summary judgment of Plaintiff's General Business Law §349 cause of action or his punitive damages claim. On this record, GOPC proffered no admissible proof that it did not "engage[] in consumer-oriented acts or practices that [were] deceptive or misleading in a material way [or] that plaintiff [was] injured by reason thereof." (Morrissey v Nextel Partners, Inc., 72 AD3d 209, 213 [3d Dept 2010], quoting Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20 [1995]). Nor did it provide any admissible proof that its "conduct [was not] so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others." (Dumesnil v Proctor and Schwartz Inc., 199 AD2d 869, 870 [3d Dept 1993]).
Lastly, GOPC's motion for summary judgment of Plaintiff's negligence per se cause of action is denied because Plaintiff raised an issued of material fact. GOPC correctly noted that a negligence per se cause of action must be based upon the alleged violation of a statute and cannot be premised upon the violation of a regulation. (Chen v United States, 854 F2d 622, 627 [2d Cir 1988]; Elliott v City of New York, 95 NY2d 730 [2001]). GOPC further established, by submitting a copy of Plaintiff's interrogatories, that Plaintiff based its negligence per se cause of on GOPC's alleged violation of a federal regulation (Hazard Analysis and Critical Control Points, HACCP). In opposition, Plaintiff properly alleged GOPC's violation the Federal Meat Inspection Act, a federal statute. Notwithstanding the fact that Plaintiff had not plead such violation earlier, it properly raised this violation in its opposition papers. (Sheils v County of Fulton, 14 AD3d 919 [3d Dept 2005]). Moreover, GOPC proffered no proof that it did not violate the Federal Meat Inspection Act.
Accordingly, GOPC's motion is denied in its entirety.
This Decision and Order is being returned to the attorneys for the Plaintiff. A copy of this Decision and Order and all other original papers submitted on this motion are being delivered to the Albany County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provision of that section respecting filing, entry and notice of entry.
So Ordered.
Dated: March 28, 2012
Albany, New York
________________________________
Joseph C. Teresi, J.S.C.
PAPERS CONSIDERED:
Notice of Motion, dated December 12, 2011, Affidavit of Ralph Weber, dated December 12, 2011, with attached Exhibits A-S.
Affirmation of Peter Balouskas, undated, with attached Exhibits A-AA.
Notice of Motion, dated January 17, 2012, Affirmation of Dana Salazar, dated January 16, 2012, with attached Exhibits A-X.
Affidavit of Mackenzie Monaco, dated January 25, 2012, with attached Exhibits 1-4B.
Affirmation of Sarah Brancatella, undated, with attached Exhibits A-Y.
Affirmation of Jena Rotheim, dated January 26, 2012, with attached Exhibits A-E.
Affirmation of Jena Rotheim, dated January 25, 2012, with attached Exhibits 1-8.
Notice of Motion, dated January 6, 2012, Affirmation of Sarah Brancatella, undated, with attached Exhibits A-P.
Affirmation of Dana Salazar, dated January 20, 2012.
Affirmation of Jena Rotheim, dated January 20, 2012, with attached Exhibits A-C.
Affirmation of Sarah Brancatella, dated January 26, 2012, with attached Exhibits A-O.
Affirmation of Sarah Brancatella, undated, with attached Exhibits A-N.