The opinion of the court was delivered by: Conner, Sr. D.J.
ECF CASE OPINION AND ORDER
Plaintiff Paul Giordano brings suit against defendants PGT Industries, Inc. f/k/a Vinyl Tech ("PGT"), M.K. Enclosure Co. ("M.K.") and Fox Lite, Inc. ("Fox Lite") alleging negligence, breach of warranty and strict products liability based on manufacturing defect, design defect and failure to warn. Plaintiff was shoveling snow off his roof when he stepped on a skylight, which broke, causing him to fall through the roof and onto the floor below, breaking his wrist and back. Plaintiff alleges that the skylight was defective and that Fox Lite manufactured it and PGT distributed it. Fox Lite and PGT now move for summary judgment. Fox Lite claims there is no evidence it manufactured the skylight, and PGT argues that plaintiff is unable to prove that the skylight was actually defective. For the following reasons, both motions are denied.
Defendant PGT was, at all times relevant to this lawsuit, in the business of manufacturing and selling component parts of patio rooms to distributors, who would then sell them to homeowners. (Def. PGT Rule 56.1 Stmt. ¶¶ 28-29.) PGT did not manufacture skylights, but it carried them in case a distributor requested one; for those projects, the distributor would cut a hole in the roof PGT provided and install the skylight. (Id. ¶¶ 31, 34.) In or around 1995, plaintiff hired a company called Iona Pools and Patio ("Iona"), a PGT distributor, to install a screened-in patio room as an addition to his house.*fn1 (Id. ¶¶ 2, 35.) The patio room had a flat roof and a two-foot-by-four-foot skylight, (id. ¶¶ 12, 14) which plaintiff claims was manufactured by defendant Fox Lite.
(Goldstein Aff. Opp. Def. Fox Lite Mot. Summ. J. ¶ 3.)
Between April 1995, when the room was built, and February 19, 2003, when the accident that is the subject of this lawsuit occurred, plaintiff did not have any complaints about the skylight, and no repairs or modifications were made to the room. (Def. PGT Rule 56.1 Stmt. ¶¶ 15, 17.) Before the accident occurred, plaintiff climbed onto the roof of the patio room approximately ten times to clear leaves or snow from the roof, but he never stepped on the skylight on any of those prior occasions. (Id. ¶¶ 18-19.)
On the day of the accident, plaintiff went onto the roof of the patio room to shovel snow. (Id. ¶ 20.) The skylight was not covered with snow, and plaintiff could see it. (Id. ¶ 21.) While he was shoveling, plaintiff stepped backward onto the skylight with the heel of his left foot. (Id. ¶ 22.) The plastic "window" portion of the skylight shattered, causing plaintiff to fall through to the floor below. (Id. ¶ 24.) As a result of the accident, plaintiff suffered a broken wrist and back, which he claims have left him permanently disabled and unable to return to work. (Goldstein Aff. Opp. Def. Fox Lite Mot. Summ. J. ¶ 2.)
I. Standard of Review and Choice of Law
Summary judgment is appropriate when there is no genuine issue of material fact and one party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). The court must resolve all ambiguity in favor of the non-moving party and draw every permissible factual inference in that party's favor. See Anderson, 477 U.S. at 255. The burden is on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). When the movant has met that burden, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting FED. R. CIV. P 56(e)) (citations omitted) (emphasis in original).
This Court has jurisdiction based on diversity of citizenship. See 28 U.S.C. § 1332(a)(1). We therefore must apply the choice of law rules of the forum state, New York. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under New York law, in a tort case "'the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders.'" Brink's Ltd. v. S. Afr. Airways, 93 F.3d 1022, 1031 (2d Cir. 1996) (quoting Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66, 72 (1993)). We therefore conclude that New York law applies to this dispute. The parties appear to agree, having cited only New York law in their memoranda. See Walter E. Heller & Co. v. Video Innovations, Inc., 730 F.2d 50, 52 (2d Cir. 1984) (noting that, under New York law, "in the absence of a strong countervailing public policy, the parties to litigation may consent by their conduct to the law to be applied."); Franklin v. Krueger Int'l, Inc., 1997 WL 691424, at *3 (S.D.N.Y. Nov. 5, 1997).
II. New York Products Liability Law -- General Principles
Plaintiff asserts claims of negligence, breach of warranty and strict products liability based on manufacturing defect, design defect and failure to warn. (See generally 2d Am. Complt.) Under New York law, the manufacturer of a defective product will be liable to a person injured by the product if:
(1) the product is "defective" because it is not reasonably safe as marketed; (2) the product was used for a normal purpose; (3) the defect was a substantial factor in causing the plaintiff's injuries; (4) the plaintiff by the exercise of reasonable care would not have both discovered the defect and apprehended its danger; (5) the ...