Opinion
Index No. 71324/2014 Motion Sequence No. 4
05-19-2021
MICHELLE MONTESIONE and PARTRICK MONTESIONE, Plaintiffs, v. NEWELL RUBBERMAID, INC. Defendant.
Unpublished Opinion
DECISION AND ORDER
HON. DAVID F. EVERETT, Justice of the Supreme Court.
The following papers were considered on the motion: Order to Show Cause (Proposed)/Attorney Affirmation/Exhibits/Order to Show Cause/Court Notices/Attorney Affirmation in Opposition/ (NYSCEF documents numbered 75-87)
In motion sequence number 4, the plaintiffs move, with leave of Court, for summary judgment on the issue of liability and to preclude certain testimony and argument at the jury trial. For reasons explained below, the Court denies the plaintiffs' motion.
The plaintiff Michelle Montesione (injured plaintiff), and her husband suing derivatively, commenced this action to recover damages for personal injuries she allegedly sustained while at work when a step stool manufactured by the defendant collapsed as she stood on it. Following the incident, one of the injured plaintiff's coworkers discarded the step stool in the trash. At jury trial on the issue of liability, the jury, over the plaintiffs' objection, was asked, "Did the subject step stool collapse under the [injured] plaintiff while she was standing on it on October 22, 2013, causing the [injured] plaintiff's accident?" The jury answered "No," thereby finding in favor of the defendant on the ground that the accident did not occur as the injured plaintiff said it did. Thereafter, the plaintiffs moved pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial. This Court denied the motion. A judgment was entered in favor of the defendant dismissing the complaint. The plaintiffs appealed from the judgment, arguing that the verdict was contrary to the weight of the evidence and that the defendant's expert should not have been permitted to testify that the accident may have occurred when the injured plaintiff fell onto the step stool.
In a memorandum decision and order dated March 3, 2021, the Appellate Division, Second Department, reversed the judgment, on the law, the facts, and in the exercise of discretion, granted the plaintiffs' motion pursuant to CPLR 4404 (a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, reinstated the complaint, and remitted the matter to this Court for a new trial on the issue of liability (see Montesione v Newell Rubbermaid, Inc., 192 A.D.3d 680 [2d Dept 2021]). The Second Department "agree[d] with the plaintiffs that the evidence so preponderate[d] in favor of the plaintiffs on the issue of whether the subject step stool collapsed as the injured plaintiff stood on it causing her accident, that the jury could not have reached the verdict it did by any fair interpretation of the evidence" (Montesione v Newell Rubbermaid, Inc., 192 A.D.3d at 682, citing Annunziata v City of New York, 175 A.D.3d 438 [2d Dept 2019]; Canale v L & M Assoc, of N.Y., Inc., 155 A.D.3d 675 [2d Dept 2017]). "Moreover, the testimony of the defendant's expert that the accident may have happened because the injured plaintiff fell onto the step stool was speculative, lacked support in the record, and should not have been admitted in evidence" (Montesione v Newell Rubbermaid, Inc., 192 A.D.3d at 682, citing Fenty v Seven Meadows Farms, Inc., 108 A.D.3d 588, 589 [2d Dept 2013]; Erbstein v Savasatit, 21A A.D.2d 445 [2d Dept 2000]). Thus, in the view of the Second Department, this Court should have granted the plaintiffs' motion pursuant to CPLR 4404 (a) to set aside the verdict as contrary to the weight of the evidence and for a new trial.
Thereafter, in a conference, held virtually by TEAMS, this Court granted the plaintiffs' oral application for leave of Court to move for summary judgment on the issue of liability, and also directed that the motion include in limine motions the plaintiffs sought to make. Now, in motion sequence number 4, the plaintiffs move, with leave of Court, for summary judgment on the issue of liability and to preclude certain testimony and argument at the jury trial. The defendant opposes the motion.
Plaintiffs' Summary Judgment Motion
The plaintiffs argue that they are entitled to summary judgment on the issue of liability. The plaintiffs urge that based on the trial testimony and the Second Department's memorandum decision and order, the plaintiffs are entitled to summary judgment "on the issue of the subject step-stool collapsing and causing [injured plaintiff's] fall" (plaintiffs' attorney's affirmation: 19). The plaintiffs contend that the defendant admitted that it sold its step stool, a product it designed and intended for normal household use, as a commercial step stool, and that the step stool failed from wear and tear in a commercial setting, causing the injured plaintiff's accident. They argue that the defendant's expert's testimony regarding possible causes of the accident has been determined by the Second Department to be speculative and not based on record evidence, and so that testimony does not raise a triable issue of fact in opposition to the plaintiffs' prima facie showing on the strict products liability claim. Further, the plaintiffs urge that based on the defendant's admitted failure to warn that the step stool was intended for household purposes and that it was a misuse to utilize it in a commercial setting, its sale of the step stool as a commercial step stool, and the unrebutted testimony of the plaintiffs' expert that the step stool failed from excessive wear and tear, the plaintiffs are entitled to judgment as a matter of law on their failure to warn claim.
The defendant argues that summary judgment should be denied. It urges that judgment as a matter of law is inappropriate because the plaintiff is the only witness to the incident and her credibility on material facts must be evaluated by the trier of fact. The defendant contends that triable issues of fact exist regarding whether the step stool was defective.
On a motion for summary judgment, the moving party must present prima facie proof demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]) . If the moving party carries this initial burden, then the nonmoving party must produce evidentiary proof in admissible form to require a trial of material issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). The court must view the evidence in the light most favorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63 A.D.3d 895 [2d Dept 2009]).
"[A] party injured as a result of a defective product may seek damages against the product manufacturer or others in the chain of distribution if the defect was a substantial factor in causing the injury" (Morales v City of New York, __ A.D.3d __, 2021 NY Slip Op 02386 [2d Dept 2021]; see Speller v Sears, Roebuck & Co., 100 N.Y.2d 38, 41 [2003]) . "AA product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product'" (Speller v Sears, Roebuck & Co., 100 N.Y.2d at 41, quoting Liriano v Hobart Corp., 92 N.Y.2d 232, 237 [1998]).
"A ''defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use'" (Yun Tung Chow v Reckitt & Colman, Inc., 17 N.Y.3d 29, 33 [2011], quoting Voss v Black & Decker Mfg. Co., 59 N.Y.2d 102, 107 [1983]). "If the 'utility' of a product Moes not outweigh the danger inherent in its introduction into the stream of commerce,' then the product is defectively designed" (Yun Tung Chow v Reckitt & Colman, Inc., 17 N.Y.3d at 33, quoting Voss v Black & Decker Mfg. Co., 59 N.Y.2d at 107). "The issue of whether a product is defectively designed such that its utility does not outweigh its inherent danger is generally one 'for the jury to decide in light of all the evidence presented by both the plaintiff and defendant'" (Yun Tung Chow v Reckitt & Colman, Inc., 17 N.Y.3d at 33, quoting Voss v Black & Decker Mfg. Co., 59 N.Y.2d at 108 [internal alterations omitted]).
"A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known" (Liriano v Hobart Corp., 92 N.Y.2d at 237; see Reece v J.D. Posillico, Inc., 164 A.D.3d 1285, 1287 [2d Dept 2018]). "A manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable" (Reece v J.D. Posillico, Inc., 164 A.D.3d at 1287-1288). "For there to be recovery for damages stemming from a product defective because of the inadequacy or absence of warnings, the failure to warn must have been a substantial cause of the events which produced the injury" (Billsborrow v Dow Chem., 177 A.D.2d 7, 16 [2d Dept 1992]). "Issues regarding the adequacy of instructions or warnings...are generally inappropriate for summary judgment relief" (Haight v Banner Metals, 300 A.D.2d 356, 356 [2d Dept 2002]; see DiMura v City of Albany, 239 A.D.2d 828, 829-830 [3d Dept 1997]).
Here, the plaintiffs are not entitled to summary judgment. Triable issues of fact exist regarding, among other things, whether the step stool was reasonably safe for its intended use and whether adequate warnings were provided.
The Second Department's determination does not dictate the result on the plaintiffs' summary judgment motion. The determination of a motion for summary judgment pursuant to CPLR 3212 is a legal determination (see Annunziata v City of New York, 175 A.D.3d 438, 440 [2d Dept 2019]; Siegel & Connors, NY Prac §§ 405, 408 [6th ed 2018]). In contrast, "[w]hether a particular factual determination is against the weight of the evidence is itself a factual question...which requires a discretionary balancing of many factors" (Annunziata v City of New York, 175 A.D.3d at 441 [internal citation and quotation marks omitted]; see Cohen v Hallmark Cards, 45 N.Y.2d 493, 498 [1978]; Nicastro v Park, 113 A.D.2d 129, 133 [2d Dept 1985]) . The Second Department's determination - that the verdict was contrary to the weight of the evidence and that the defendant's expert should not have been permitted to testify that the accident may have happened because the injured plaintiff fell onto the step stool - did not constitute a determination of liability as a matter of law, and does not compel such a determination. Summary judgment on the issue of liability would be inappropriate with respect to whether the step stool collapsed given that the collapse alone would not establish liability as a matter of law. The Second Department ordered, among other things, that there must be a new trial on the issue of liability. A summary judgment determination taking the issue of liability away from the jury would be improper.
Accordingly, the Court denies that branch of the plaintiffs' motion which is for summary judgment on the issue of liability.
Motion In Limine
The plaintiffs move in limine to prohibit the defendant from asserting at trial that the absence of the step stool for examination following the incident prevents or otherwise hinders the plaintiffs from establishing the defendant's liability. The plaintiffs argue that the doctrine of unclean hands applies to bar the defendant from making such assertion, since the defendant committed wrongdoing by marketing the step stool as a commercial product, resulting in it being in an unsuitable environment, and its disposal has placed the plaintiffs, who bear the burden of proof, at a disadvantage.
The defendant argues that the plaintiffs have not shown that the doctrine of unclean hands applies here. The defendant contends that it is the defendant who finds itself at a complete disadvantage as a result of not being able to examine the step stool.
"The doctrine of unclean hands applies when the complaining party shows that the offending party is guilty of immoral, unconscionable conduct and even then only when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct" (Citimortgage, Inc. v Heyman, 186 A.D.3d 1487, 1488-1489 [2d Dept 2020] [internal quotation marks omitted]; see Ortiz v Silver Invs., 165 A.D.3d 1156, 1157 [2d Dept 2018]).
The Court is skeptical that the doctrine of unclean hands, that doctrine being an equitable defense (see Toobian v Golzad, __ A.D.3d__, 2021 NY Slip Op 02186 [2d Dept April 7, 2021]; Sui-Hsu Hsieh v Yen-Tung Teng, 156 A.D.3d 1424, 1425 [4th Dept 2017]), may be invoked to preclude the defendant from offering certain evidence or making certain contentions at trial. In any event, the plaintiffs have not shown that the defendant is guilty of immoral, unconscionable conduct for purposes of invoking this doctrine. Thus, the Court denies that branch of the plaintiffs' motion which is to preclude, based on the doctrine of unclean hands, certain testimony or argument at the jury trial.
Accordingly, it is, ORDERED that the plaintiffs' motion for summary judgment on the issue of liability and to preclude certain testimony and argument at the jury trial is denied; and it is further, ORDERED that the plaintiffs must, within ten days of the date of entry, serve a copy of this decision and order with notice of entry upon the defendant; and it is further, ORDERED that the plaintiffs must, within ten days after service of the notice of entry, file proof of that service via NYSCEF; and it is further, This constitutes the decision and order of the Court.