Palmatier v. Mr. Heater Corp.

160 A.D.3d 1093

75 N.Y.S.3d 297

Sarah PALMATIER, Plaintiff,

v. MR. HEATER CORPORATION et al., Appellants,andMacy's, Inc., et al., Respondents, et al., Defendants.

524732

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 14, 2018

Decided and Entered: April 5, 2018

Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Edward D. Laird Jr. of counsel), for appellants.

Lester 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

Aarons, J.

Appeals 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.

The facts are set forth in more detail in three prior related appeals (159 A.D.3d 1084, 71 N.Y.S.3d 717, 2018 N.Y. Slip Op. 01368, 2018 WL 1093436 [2018] ; 156 A.D.3d 1178, 67 N.Y.S.3d 342 [2017] ; 156 A.D.3d 1167, 68 N.Y.S.3d 530 [2017] ). 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.

The 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, 655 N.Y.S.2d 184 [1997] ; see generally Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 601–602, 640 N.Y.S.2d 860, 663 N.E.2d 901 [1996] ). 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, 655 N.Y.S.2d 184 ; Antonucci v. Emeco Indus., 223 A.D.2d 913, 915, 636 N.Y.S.2d 495 [1996] ; George Larkin Trucking Co. v. Lisbon Tire Mart, 185 A.D.2d 614, 615, 585 N.Y.S.2d 894 [1992] ).

Furthermore, 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...