Summary
In Lewis v Baker (1 AD3d 217 [1st Dept 2003]), the only evidence linking the manufacturer to the product was a statement by the plaintiff's employer that he had purchased the item from a Sear's catalogue about 15 years prior to the accident.
Summary of this case from SPICONARDI v. MACY'S E.Opinion
2234
November 18, 2003.
Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered July 1, 2002, which, in a products liability action, insofar as appealed from, granted the motion of defendant — respondent Sears for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
David M. Shearer, for plaintiff-appellant.
Karen Kirshenbaum, for defendant-respondent.
Karen Kirshenbaum, for third-party plaintiff-respondent.
Anthony M. Grisanti, for third-party defendant-respondent.
Before: Nardelli, J.P., Tom, Mazzarelli, Marlow, JJ.
Sears' evidence sufficiently establishes that the allegedly defective ladder was made of magnesium, that Sears no longer sold magnesium ladders at the time plaintiff's employer claimed to have purchased the ladder from Sears, and that the ladder in any event was a model type never sold by Sears. Such evidence consisted largely of the relevant pages of Sears catalogues, and the affidavit of the plant manager and chief engineer of the only manufacturer of magnesium ladders at the time plaintiff's employer claims to have purchased the ladder. This witness has personal knowledge of the design features of all of the manufacturer's ladders, and, based on measurements and photographs taken by Sears of parts of the ladder that plaintiff's employer did not discard, was competent to assert that the ladder was a model type never listed in a Sears catalogue. Against this, the only evidence offered by plaintiff to show that Sears sold the ladder to his employer were his employer's statements that he purchased the ladder from a Sears catalogue about 15 years before the accident. Unsupported by any objective evidence such as receipts, manuals or warranty information, the employer's statements do not raise a genuine issue of fact as to whether he purchased the ladder from Sears (see Whelan v. GTE Sylvania, 182 A.D.2d 446). In view of the foregoing, plaintiff's remaining claim that he was improperly sanctioned for his employer's spoliation of the ladder is academic.
Motions seeking leave to strike brief granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.