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