Calendar Date: November 15, 2017
Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,
Albany (Edward D. Laird Jr. of counsel), for appellants.
Napierski, Vandenburgh, Napierski & O'Connor, LLP,
Albany (Shawn T. Nash of counsel), for respondent.
Before: Egan Jr., J.P., Rose, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order and an amended order of the Supreme Court
(Gilpatric, J.), entered December 13, 2016 in Ulster County,
which, among other things, granted a motion by defendant Star
of India Fashions, Inc. for summary judgment dismissing the
complaint against it.
suffered burns when the dress and skirt she was wearing
caught on fire as she stood next to an unvented propane
heater. She commenced an action seeking damages for her
injuries, alleging, as is relevant here, that the skirt was
distributed by defendant Star of India Fashions, Inc. and the
heater was manufactured, designed and/or distributed by
defendants Mr. Heater Corporation, Enerco Group, Inc. and
Tractor Supply Company (hereinafter collectively referred to
as the Enerco defendants). In their answer, the Enerco
defendants asserted a cross claim for contribution against,
among others, Star of India. Plaintiff commenced a second
action against, among others, the retailers where she
believed she may have purchased the skirt, and the two
actions were then consolidated. Following discovery, Star of
India moved for summary judgment dismissing both the
complaint and any cross claims asserted against it, alleging
that it did not distribute plaintiff's skirt and, even if
it did, the skirt was reasonably safe. Supreme Court granted
the motion, and the Enerco defendants now appeal.
agree with the Enerco defendants that Star of India failed to
meet its initial burden of establishing, as a matter of law,
that it did not distribute plaintiff's skirt (see
Stokes v Komatsu Am. Corp., 117 A.D.3d 1152, 1154
; Ebenezer Baptist Church v Little Giant Mfg. Co.,
Inc., 28 A.D.3d 1173, 1173-1174 ; Baum v
Eco-Tec, Inc., 5 A.D.3d 842, 843-844 ;
Antonucci v Emeco Indus., 223 A.D.2d 913, 914
). Here, Star of India's proof established that
plaintiff's mother purchased the skirt for her in the
spring of 2007 from one of several possible retailers,
including defendant Macy's Inc., and that it had a label
attached to it with Star of India's registration number
and the word "Angie" written in a distinctive logo.
Star of India admitted that "Angie" is one of its
product lines and that, from 2004 to 2009, it distributed
skirts with its registration number and the "Angie"
logo on the label to several retail stores in New York,
the foregoing admission, Star of India proffered the
deposition testimony of Olivia Smith, its general manager,
who opined that Star of India did not distribute
plaintiff's skirt. In support of this claim, Smith
produced a 2½-page printout of search results from
Star of India's "In Transit" database. The
database records all of the styles, fabrics, colors,
quantities and intended retailers of the approximately three
million items received by Star of India from its suppliers
each year. According to Smith, the search results reflected
on the printout conclusively established that Star of India
did not distribute any skirts to Macy's New York stores
in 2007. However, as we noted in a related appeal involving a
disclosure issue between Star of India and the Enerco
defendants (Palmatier v Mr. Heater Corp., ___ A.D.3d
___ [appeal No. 524050, decided herewith]), Smith was unable
to identify who performed the search that generated the
printout or what search terms were used to produce it
. Although Smith testified to certain
differences between the label on plaintiff's skirt and
the label on a known Star of India product, such as the
thread color and stitching, Smith admitted that she was
unaware if the standard label instructions that Star of India
provides to its various factories specifies the thread color
or whether there have been modifications to the instructions
during her employment with Star of India. In light of the
undisputed proof that plaintiff's skirt had Star of
India's registration number and the "Angie"
logo on the label, coupled with Smith's equivocal
testimony, we find that Star of India failed to eliminate all
triable issues of fact as to whether it distributed the skirt
(see Stokes v Komatsu Am. Corp., 117 A.D.3d at
similarly agree with the Enerco defendants that Star of India
failed to meet its burden of establishing, as a matter of
law, that the skirt was reasonably safe. Here, Star of India
proffered an affidavit by an engineering expert who attended
the flammability testing that was conducted on the skirt.
According to the expert, the testing revealed that the skirt
was in compliance with the minimum requirements of the
applicable federal safety and flammability standards and,
therefore, the skirt was reasonably safe. It is well-settled,
however, that compliance with federal flammability
requirements "is merely some evidence of due care and
does not preclude a finding of negligence"
(Mercogliano v Sears, Roebuck & Co., 303 A.D.2d
566, 566 ; see Feiner v Calvin Klein,
Ltd., 157 A.D.2d 501, 502 ; but see Spiconardi
v Macy's E., Inc., 83 A.D.3d 472, 473 ). In
any event, we find that the Enerco defendants' competing
expert affidavit raised a triable issue of fact as to whether
the skirt was reasonably safe (cf. Barclay v
Techno-Design, Inc., 129 A.D.3d 1177, 1180 ).
Accordingly, we find that Supreme Court erred in granting
Star of India's motion for summary judgment.
parties' remaining contentions have been reviewed and
found to be without merit.
Jr., J.P., Mulvey and Rumsey, JJ., concur.
that the order and the amended order are reversed, on the