The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff, Keith Henry, commenced this action by filing a complaint invoking this Court's diversity jurisdiction against defendant, Rehab Plus, Inc., d/b/a Rehab Plus Therapeutic Products ("Rehab Plus"). The complaint sets forth claims for relief based on negligence, strict products liability, breach of implied warranty, breach of express warranty, and unfair and deceptive trade practices. Defendant Rehab Plus now moves for summary judgment dismissing the complaint pursuant to Fed. R. Civ. P. 56. For the reasons set forth below the defendant's motion for summary judgment is granted in part and denied in part.
The following facts are taken from the submissions of the parties in connection with the present motion. They are undisputed except where noted.
Defendant Rehab Plus was formed in 1989 by David Foster and Ronny Bilbo to manufacture and sell a variety of medical and industrial products. [Foster Dep. 10.] For example, the medical division sells ankle weights and orthopedic soft goods, such as wrist splints, elbow protectors, and ankle braces made from a soft material. [Id.] The industrial division sells safety vests and fire retardant clothing. [Id. at 18]. In 1991-1992 the industrial division of Rehab Plus began to sell back support belts. [Id.] Back support belts, "resemble corsets that encircle the abdomen and lower back" and often include attached suspenders.[Pl. Ex. 1]. They are usually "constructed of elastic materials". [Id.] Back support belt manufacturers generally claim that their belts prevent worker injury during lifting.*fn1 [Id.] Accordingly, they are used in numerous industries in an attempt to prevent back injuries. In his deposition, David Foster, stated that Rehab's design for the back supports was adopted from that of a Rehab Plus competitor, Ergodyne. [Id. at 24-25]. In contrast, the plaintiff asserts that the design was taken from a different competitor, FLA Orthopedics ("FLA"). [Pl. R. 56.1. ¶19].*fn2 In support of this position, plaintiff points to the fact that Rehab's alleged use of the FLA design was the subject of a patent infringement suit filed by FLA in 1999 in the Southern District of Florida under case number 1:99cv690. The suit was eventually settled.
In 1994, two government regulatory agencies, the National Institute for Occupational Safety and Health ("NIOSH") and Occupational Safety and Health Administration ("OSHA") released studies questioning the usefulness of back support belts. In a NIOSH paper entitled, "Back belts, Do They Prevent Injury?", the Institute found that the utility of back support belts was inconclusive but that workers who falsely believed that they could lift more while wearing a back belt might subject themselves to greater risk by lifting more weight than they would have without the belt. [Pl. Ex. 1].
In 1994, Rehab negotiated with Sears, Roebuck and Company ("Sears") to provide back supports to Sears employees. Prior to 1994 Sears provided its employees with FLA brand back supports. According to Sears Manager of Safety and Health, Timothy Stuart, Sears switched to providing its employees with Rehab back supports because the Rehab back supports were made from higher quality materials. [Stuart Dep. 12]. Sears requested that the manufactured back supports have attached shoulder straps, and not detachable straps. Sears also required cross-stitching on some of the closures so that they would not warp, twist or bend.
According to David Foster, Rehab Plus believed the back supports were useful because they serve as a "constant reminder to use proper lifting techniques." [Foster Dep. 36]. Foster states that Rehab never portrayed its support belts as useful for any other purpose. [Id.]
In 1994, Rehab manufactured the requested back supports in two styles. One "all-purpose" (sic) style and one style specifically made for women. [Stuart Dep. 41-42]. There have been no design changes or alterations to the back support belt since the inception of production. [Foster Dep. 98; Stuart Dep. 15]. Individual Sears stores ordered back supports from Rehab on an as-needed basis. The support belts were then delivered from Rehab directly to individual Sears stores. [Henry Dep. 51-52; Stuart Dep. 18; Foster Dep. 64-65]. Each back support was packaged in an individual clear plastic "ziploc" bag. [Id.] In his deposition, Stuart, the Sears Manager for Safety, testified that each support belt came with a pamphlet outlining its care and maintenance [Stuart Dep. 19]. However, plaintiff's deposition testimony was that no care or maintenance instructions accompanied the support belts. [Henry Dep. 51-52]. Both sides agree that Rehab Plus did not produce any safety or use instructions for the support belt.
In 1997, plaintiff, Keith Henry began working at the King's Plaza Sears located on Flatbush Avenue at Kings Plaza, Brooklyn, New York. [Henry Dep. 12-13]. Henry was initially hired as a stock clerk, a job that involved lifting boxes. [Henry Dep. 40]. Although Henry received training related to loss prevention and other Sears policies [Henry Dep. 42-43], he did not receive any training in lifting or back injury prevention. [Henry Dep. 48-49; 51-52]. When Henry was hired, Sears did not require its employees to wear support belts nor did it provide such belts. However, Henry wore a weight belt, designed primarily for weight lifters, which he had purchased himself at Modell's. [Henry Dep. 39].
In 1998, Sears began a back injury prevention training program. [Henry Dep. 8]. As Manager of Safety and Health, Stuart was responsible for overseeing its creation. [Stuart Dep. 43]. The new program consisted of a video, a facilitator's handbook, a participant's handbook, and posters describing proper lifting technique. [Stuart Dep. 9]. The facilitator's guide provided a step by step process for back injury prevention training. [Stuart Dep. 27-28]. A third party vendor, Liberty Mutual, used the guide to run training sessions at individual retail locations for Sears employees. [Stuart Dep. 45-46; 53-54]. At these sessions employees watched the video, entitled, "back injury prevention training" which stated that back support belts protect from back injuries. [Stuart Dep. 17]. Although Sears developed the basic concepts and contents of the program, Rehab Plus assisted in the process. [Stuart Dep. 10]. During training sessions employees were provided with the participant's handbook. The participant's handbook provided tips on how to prevent back injury and described the proper way to don, wear and maintain a back support belt. [Stuart Dep. 27]. Sears issued certificates of completion to employees who finished the program. [Stuart Dep. 40].
Plaintiff states, however, that this new training program was not available at the Kings Plaza Sears, and that accordingly he never received training. [Henry Dep. 48-49; 51-52].
In 1998, Sears conducted a meeting to instruct its employees that they must wear back support belts emblazoned with "Sears." [Henry Dep. 46-47]. Henry believed that this was because the support belts would protect his back during lifting. [Henry Dep. 46]. At that meeting Henry received a Rehab Plus support belt. [Henry Dep. 37-38; 47]. The belt was black and said "Sears" on the back. It had a velcro fastener in the front and shoulder straps. Henry did not have to complete any paperwork in connection with his receipt of the back support belt from Sears. [Henry Dep. 37]. No one from Sears gave Henry any instruction regarding the proper use of the support belt. He was not instructed in how to fasten the velcro, [Henry Dep. 63], on where to position the belt on his torso [Henry Dep 64], on how to use the shoulder straps, or on how to position the shoulder straps. [Henry Dep. 67]. Henry believed he knew what to do with the back support belt. He knew to pull the velcro fastener so that the belt fit snugly and to adjust the shoulder straps so that they were not too long and fit against his shoulders. [Henry Dep. 67].
Henry was permitted to take the belt home and bring it back to work, and in fact, generally wore it to and from work [Henry Dep. 35]. In 1999, Henry left his belt at home and received a new one. [Henry Dep. 54-56; 60]. When he received the new belt, Henry was required to sign a receipt. That receipt stated, I Keith Henry, Associate #5207, have been given a new back belt. These belts are an important safety item and will prevent injury when used along with proper lifting techniques. It is my responsibility to wear it everyday when I am involved in lifting merchandise. I'm also responsible for ensuring the belt is in my possession at all times. . . . if I'm found lifting ...