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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



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. Page 3

  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 Page 4 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 Page 5 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 ...

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