United States District Court, N.D. New York
February 5, 2004.
TIMOTHY LONGO and KAREN LONGO, Individually and as Parents and Natural Guardians of Infants ZACHARY LONGO and JOSHUA LONGO, Plaintiffs -vs- IMPERIAL TOY CORPORATION, Defendant-Third Party Plaintiff, -vs- SOHNI-WICKE GmbH; SOHNI-WICKE AMORCES-UND SPIELWAREN GmbH; and SOHNI-WICKE AMORCES-UND SPIELWAREN GmbH, Third Party Defendants
The opinion of the court was delivered by: DAVID HURD, District Judge Page 2
MEMORANDUM-DECISION and ORDER
Plaintiff's Timothy ("Mr. Longo") and Karen Longo ("Mrs. Longo"),
individually and as the parents and natural guardians of
infant-Plaintiff's Zachary ("Zachary") and Joshua ("Joshua") Longo
(collectively, "Longos"), brought suit against defendant Imperial Toy
Corporation ("Imperial"), alleging negligent failure to warn, strict
products liability, breach of implied warranty of merchantability, and
breach of implied warranty of fitness, in connection with an incident
involving a product allegedly manufactured by Imperial.*fn1
Imperial has filed a motion for summary judgment pursuant to
Fed.R.Civ.P. 56. Plaintiff's opposed. Oral argument was heard on October
24, 2003, in Albany, New York. Decision was reserved.
In the fall of 1990, Mrs. Longo went to a store named Caldor's and
purchased for her then five-year old son Joshua a toy gun and packages of
toy gun caps. Joshua removed the caps from the packages and placed them
in a sandwich bag. Neither Mrs. Longo nor her husband saw from which
package Joshua removed the caps. Joshua is unsure which brand or brand of
caps he emptied into the sandwich bag. The sandwich bag was kept in a
screened-in front porch that was attached to the family home.
On March 21, 1991, Zachary, then just over a year old, retrieved the
sandwich bag of caps from the porch, and sat down on the love seat
occupied by Mrs. Longo and her third child, an infant. After Mrs. Longo
admonished Zachary for retrieving the sandwich bag, he spilled the caps
contained therein. She called for Joshua to the pick up the caps and
place them back into the sandwich bag. Joshua, cupping his hands,
attempted to push the caps into a pile. The caps then "exploded," or
"blew up," (Docket No. 30, Ex. J, p. 5; Docket No. 30, Ex. K, p. 22),
burning Joshua's hand and causing Zachary's pajamas to catch on fire.
After quelling the flames from Zachary's pajamas and administering some
rudimentary treatment to Joshua's burned hand, Mrs. Longo borrowed her
sister's car to take Joshua to get medical treatment.
Mr. Longo was not home during these events. When Mrs. Longo returned
home with Joshua later that evening, she explained to her husband what
had happened and showed him the toy gun and the sandwich bag of caps.
At the suggestion of a friend, Mr. and Mrs. Longo contacted Paul
DeLorenzo ("DeLorenzo"), Esq. After an initial meeting with DeLorenzo,
Mr. Longo brought him Zachary's pajamas, as well as the blanket he had
been holding at the time of the accident, some photographs, the toy gun,
and the sandwich bag of caps. Subsequently, he brought DeLorenzo an
unopened package of caps bearing Imperial's name. At her August 28, 2002,
deposition, Mrs. Longo testified that the only caps remaining after the
accident were the ones already in the sandwich bag. (Docket No. 30, Ex.
K, pp. 37-38.) However, by affidavit dated September 1, 2003, submitted
in opposition to Imperial's summary judgment motion, she claimed that she
was "a little confused" at her
deposition, and that the unopened Imperial caps were the type she
purchased at Gator's and that Mr. Longo brought to DeLorenzo's office.
(Docket No. 33, Aff. of Karen Longo, ¶ 11.)
DeLorenzo also had in his possession a package of unopened caps bearing
the name of Edison Toys of U.S.A., Inc. ("Edison"). Mr. Longo contends,
however, that he did not bring the Edison caps to DeLorenzo, and that the
attorney instead "may have bought them on [his] own or [as a] result of a
news report on WRGB that used th[is] type of caps to conduct
experiments." (Docket No. 33, Aff. of Timothy Longo, ¶ 9.) DeLorenzo
denies purchasing the caps or having any contact with media
representatives, and claims that all caps in his possession were brought
to him by the Longos.
On August 23, 1993, DeLorenzo filed suit on behalf of Mr. and Mrs.
Longo, Zachary, and Joshua in New York State Supreme Court, alleging that
Edison and Caldor, Inc. were responsible for the boys' injuries, as the
manufacturer and seller of the injury-causing caps. In 1995, Caldor,
Inc. filed for bankruptcy in the United States Bankruptcy Court for the
Southern District of New York. The Longos' case against Edison and
Caldor, Inc. languished until June 2001, nearly eight years after it was
filed, at which time their new counsel, upon discovering Caldor, Inc.'s
bankruptcy and that Edison was allegedly not the manufacturer of the
injury-causing caps, discontinued the state court action. This lawsuit,
in which the Longos claim Imperial was the manufacturer of the
injury-causing caps, followed.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions and affidavits show that there is
no genuine issue as to any
material fact, and that the moving party is entitled to summary judgment
as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby. Inc.,
477 U.S. 242, 247 (1986); Richardson v. New York State Dep't of
Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences
therefrom, and ambiguities must be viewed in a light most favorable to
the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); Richardson. 180 F.3d at 436; Project Release v.
Prevost. 722 F.2d 960, 968 (2d Cir. 1983). Once the moving party has met
the initial burden of demonstrating the absence of a genuine issue of
material fact, the nonmoving party "must set forth specific facts showing
that there is a genuine issue for trial." Fed.R.Civ.P. 56; Liberty Lobby.
Inc., 477 U.S. at 250; Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986);
Matsushita Elec. Indus. Co., 475 U.S. at 587. At that point the nonmoving
party "must do more than simply show that there is some metaphysical doubt
as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586.
To withstand a summary judgment motion, sufficient evidence must exist
upon which a reasonable jury could return a verdict for the nonmovant.
Liberty Lobby. Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475
U.S. at 587.
B. The Longos' Claims
The parties agree that the issue at bar in the pending summary judgment
motion is whether the Longos have adduced sufficient evidence to identify
Imperial's toy gun caps as the product that allegedly caused Zachary's
and Joshua's injuries. The Longos "must establish by competent proof that
it was [Imperial] [which] manufactured and placed in the stream of
commerce the [allegedly] injury-causing defective product." Healey
v. Firestone Tire& Rubber Co., 87 N.Y.2d 596, 601 (1996). While
circumstantial evidence may be considered competent proof, such evidence
must at least demonstrate "that it is reasonably
probable, not merely possible or evenly balanced, that the defendant was
the source of the offending product. Speculative or conjectural evidence
of the manufacturer's identity is not enough." Id. at 601-02 (citations
omitted). The Longos cannot satisfy their burden.
Local Rule 7.1(a)(3) required Imperial, as the moving party, to submit
a statement of material facts, which it did. However, it also required
the Longos to submit a response "mirror[ing] [Imperial's] Statement of
Material Facts by admitting and/or denying each of [Imperial's]
assertions in matching numbered paragraphs," which they did not do.
Instead, inserted into their memorandum of law in opposition to
Imperial's summary judgment motion is a section entitled, "Statement of
Facts Pursuant to Fed. Rules Civ Pro § 56 & Local Rule 7.1(F)." (Docket
No. 34, pp. 3-4.) In this section, neither matching enumerated paragraphs
nor explicit admissions or denials are present. The Longos do state that
"[b]y circumstantial evidence [they] can establish that the toy that
caused injury to the infant[s]. . . was that of . . . Imperial . . . and
as such a material issue of fact remains for the trier of fact to
determine," but no record citation accompanies this claim. Id. at 4.
Perhaps more importantly, they do not specifically deny any of the
following facts, all of which were asserted by Imperial in its statement
of material facts: (1) "Infant plaintiff Joshua Longo does not remember
from what package the caps in his sandwich bag came," (Docket No. 31, ¶
13); (2) "Infant Joshua Longo does not remember whether the caps in his
sandwich bag were all the same brand or different brands," id. at ¶ 14;
(3) "Plaintiff Timothy Longo did not see the package from which the caps
in the sandwich bag came," id. at ¶ 17; (4) "Plaintiff Karen Longo does
not remember what the package of caps she purchased look like," id. at
¶ 20; and (5) "Plaintiffs are unable to identify what caps were in the
sandwich bag and what caps caused the infant plaintiff's injuries," id.
at ¶ 21. Because the Longos failed to specifically admit or deny these
asserted facts in like-numbered paragraphs, Local Rule 7.1(a)(3)
contemplates that they are "deemed admitted."
Even setting aside the local rules, the facts asserted by Imperial find
support in the transcripts of the depositions it submitted in support of
its motion for summary judgment. Joshua filled the sandwich bag with caps
from the packages that Mrs. Longo bought. Neither Joshua, Mrs. Longo, nor
Mr. Longo, remember which packages were used to fill the sandwich bag.
Mr. and Mrs. Longo do not remember seeing Joshua empty caps into the
sandwich bag. These facts alone would suffice to demonstrate that the
Longos have not shown that it was reasonably probable that the caps in
the sandwich bag were those manufactured by Imperial. The only thing that
could possibly impact this conclusion is if Mrs. Longo was able to
testify definitively that she bought only one type of caps from the
store. She did not do so at her deposition. Thus, it would be improper
from the deposition testimony to infer that all of the caps in the
sandwich bag were caps manufactured by Imperial.
The only substantive denial, expressly or by implication, of these
asserted facts comes from Mrs. Longo's affidavit submitted in opposition
to Imperial's motion for summary judgment. As noted, in her affidavit,
Mrs. Longo claims that she was confused at the deposition, and that she
now believes, over a year after her deposition and over a decade since
the accident, that it was Imperial caps which caused the injuries.
However, Mrs. Longo cannot now be permitted to use an affidavit
submitted in opposition to a motion which, if successful, would result in
the dismissal of her claim contrary to her deposition testimony to
create a triable issue of fact. Margo v. Weiss, 213 F.3d 55, 60-61 (2d
Cir. 2000) ("[T]he plaintiffs cannot defeat a motion for summary judgment
by responding with affidavits
recanting . . . earlier [deposition] testimony") (citing Perma Research
& Development Co. v. Singer. 410 F.2d 572, 578 (2nd Cir. 1969)). As
noted, her earlier deposition testimony is supported by assertions made
by other family members in depositions. Also, though she claims in the
affidavit that the unopened package of Edison caps was never delivered to
DeLorenzo's office, she does not expressly claim that she never purchased
Edison caps. The Longos have failed to carry their burden to demonstrate
that it was reasonably probable that the caps in the sandwich bag were
manufactured by Imperial.
Accepting the evidence most favorable to plaintiffs, there is not even
sufficient circumstantial evidence to create a genuine issue of fact for
a jury. At this point in time, it would be pure speculation and quesswork
for a jury to attempt to determine the manufacturer or manufacturers of
the caps which caused the injuries to the two boys.*fn2 The complaint
must be dismissed.
Accordingly, it is
1. Defendant Imperial Toy Corporation's motion for summary judgment is
2. The complaint is DISMISSED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.