Calendar Date: February 14, 2018
Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,
Albany (Edward D. Laird Jr. of counsel), for appellants.
Schwab Katz & Dwyer, LLP, New York City (Paul M. Tarr of
counsel), for Macy's, Inc. and others, respondents.
Before: Egan Jr., J.P., Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order and an amended order of the Supreme Court
(Gilpatric, J.), entered November 9, 2016 and December 13,
2016 in Ulster County, which, among other things, granted
certain defendants' motion for summary judgment
dismissing the complaint against them.
facts are set forth in more detail in three prior related
appeals (__ A.D.3d __, 2018 NY Slip Op 01368 ; 156
A.D.3d 1178 ; 156 A.D.3d 1167');">156 A.D.3d 1167 ). Briefly,
plaintiff commenced two separate actions, which were later
consolidated, for alleged personal injuries sustained after
the dress and skirt she was wearing caught on fire as she was
standing next to a heater. As pertinent here, plaintiff
alleged that the skirt was distributed by defendant Star of
India and that 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). Following
joinder of issue and discovery, defendants Macy's, Inc.,
Macy's East, LLC, Macy's East, Inc., Macy's
Corporate Services, Inc., Macy's Merchandising
Corporation and Macy's Merchandising Group, Inc.
(hereinafter collectively referred to as the Macy
defendants), who plaintiff alleged sold the skirt at issue,
moved for summary judgment on the basis that plaintiff could
not identify from what store she purchased the skirt and,
even if so, the skirt was not defectively designed or
required a warning. The Enerco defendants opposed the motion.
Supreme Court granted the Macy defendants' motion for
summary judgment, prompting these appeals by the Enerco
defendants. We reverse.
Macy defendants failed to meet their initial burden of
establishing that they did not sell the skirt at issue
(see Clark v Globe Bus. Furniture, 237 A.D.2d 846,
847 ; see generally Healey v Firestone Tire &
Rubber Co., 87 N.Y.2d 596, 601-602 ). The Macy
defendants correctly note that neither plaintiff nor her
mother could identify the specific store from which the skirt
was purchased. Merely pointing to gaps in plaintiff's
proof, however, does not suffice for the Macy defendants to
meet their threshold burden (see Clark v Globe Bus.
Furniture, 237 A.D.2d at 847; Antonucci v Emeco
Indus., 223 A.D.2d 913, 915 ; George Larkin
Trucking Co. v Lisbon Tire Mart, 185 A.D.2d 614, 615
plaintiff testified that the skirt had an "Angie"
label on it. Although a product director employed by the Macy
defendants, who was previously a buyer, testified that she
purchased Angie-labeled skirts from Star of India and that
the Macy defendants sold skirts that were purchased from Star
of India, her testimony was equivocal as to whether the type
of skirt at issue was ever sold by the Macy defendants. In
view of the foregoing evidence, the Macy defendants failed to
eliminate all triable issues of fact as to whether they sold
the skirt and, therefore, their motion should have been
denied regardless of the sufficiency of the Enerco
defendants' opposition (see Stokes v Komatsu Am.
Corp., 117 A.D.3d 1152, 1154-1155 ; Christiana
v Joyce Intl., 198 A.D.2d 690, 691 ; see
generally Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d
851, 853 ). 
for reasons stated in Palmatier v Mr. Heater Corp.
(156 A.D.3d 1178');">156 A.D.3d 1178, 1180 , supra), whether the
skirt was reasonably safe must be decided by the trier of
fact. Additionally, in light of our determination, we reject
the Macy defendants' request for sanctions. The
parties' remaining contentions, to the extent not
specifically discussed herein, have been considered and lack
Jr., J.P., Mulvey and Rumsey, JJ., concur.
that the order and the amended order are reversed, on the
law, with costs, and motion denied.