Huxley v Arizona Mail Order Co., Inc.

[*1] Huxley v Arizona Mail Order Co., Inc. 2005 NY Slip Op 51603(U) [9 Misc 3d 1116(A)] Decided on March 30, 2005 Supreme Court, Monroe County Polito, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 30, 2005
Supreme Court, Monroe County

Marguerite Huxley, Plaintiff,

against

Arizona Mail Order Company, Inc., d/b/a Old Pueblo Traders, and Crown Foundations, Inc., Defendants.



01/10690



McConville, Considine, Cooman & Morin, P.C.

Jason S. DiPonzio, Esq., of Counsel

Attorneys for Plaintiff

Office and P.O. Address

25 East Main Street

Rochester, NY 14614

Sugarman Law Firm, LLP

Brandon R. King, Esq., of Counsel

Attorneys for Defendants

Office and P.O. Address

360 South Warren Street

HSBC Center, Fifth Floor

Syracuse, NY 13202

William P. Polito, J.

Plaintiff commenced her action on September 10, 2001 alleging causes of action of breach of warranty and strict product liability. The basis of her action is that the cross stitching on a girdle model Crown-ette Style 426(C) which she purchased from defendant Arizona Mail Order Company, Inc. and was manufactured by Crown Foundation, Inc. caused ulcerated sores on her stomach area resulting in surgical draining and irrigation.

Plaintiff contends that in August 1998, when she was approximately 74 years old, she purchased a girdle from defendants to take to Florida with her in October. (Pl depo 12). She stated that she had worn girdles for many years but had not purchased one in "many years" since Sibley's or McCurdy's were in business. (Pg 11). She submits that when she received the girdle she tried it on and it fit comfortably. (Pg 12, 20). She testified that upon arriving in Florida she wore it for a short period of time but could not recall how many times, all without incident or problems. (Pg 21, 23). Plaintiff contends that on Sunday, February 7, 1999 she wore the girdle for the whole day (early afternoon until 9:30PM) and did not experience any pain or discomfort until removing the girdle that evening. (Pg 25, 26). When she removed the girdle she noticed that the area where the girdles cross stitching rubbed, was very red and may have contained light blisters. (Pg 27). Plaintiff treated with cortisone cream for approximately one week and upon seeing the doctor was advised that due to her diabetic condition needed surgical intervention to heal the wound site. (Pg 29).

Plaintiff alleges that the defendants were negligent in manufacturing and/or designing a girdle that was not reasonably safe, in that it had a vertical front seam consisting of a gap with the sides being held together with webbed stitching. Plaintiff further alleges that defendants by selling this defective girdle breached it implied warranties of merchantability and fitness. (B of P).

Law and Rationale:

On a motion for summary judgment, the moving party must establish a prima facie showing of entitlement to judgment as a matter of law, tending sufficient evidence to demonstrate the absence of any material issue of fact, the opponent must raise a material triable issue of fact. (Menzel v. Plotnick, 202 AD2d 558, 559, (2nd Dept., 1994)). The papers should be scrutinized in a light most favorable to the non moving party. (Id at 559)). [*2]

A plaintiff may maintain an action for strict product liability or negligence for a manufacturer's failure of warn to the risks and dangers associated with the use of their product and/or if such product is defective and that defect warrants the product not reasonably safe for its intended use. (Dimura v. Albany and E-Z Go, 239 AD2d 828, (3Dept., 1997)).

Defendants have submitted the affidavit of Joseph Wanas, a garment expert, who has worked in the area of design and manufacture of women's undergarments including girdles for over 40 years. Mr Wanas submits that he familiar with the industry standards for girdles and specifically familiar with the Crown model 426[c]), which is a common girdle in the industry. That girdle has been manufactured for over 40 years and deponent is unaware of any problems, complaints or recalls. Mr Wanas opines, after examining a model 426[c]) girdle identical to the one in question, that such girdle meets all industry standards for quality and safety, including seams, stitching and materials. He further opines that the cross stitching in the front of the girdle seam in no way is dangerous and/or defection and that other girdles in the industry are manufactured with similar cross stitching. (Wanas aff. dated 1/1/04).

Plaintiff has not disputed defendants' experts opinion through an expert garment designer. Instead, plaintiff submits only the treating physicians affidavit averring that the "pinching of the cross stitching" resulted in non healing ulcers.

(Dr Swammy aff. dated 3/12/04). Plaintiff has not submitted any expert proof to dispute that the product was safe for its intended use and not defective and in accordance with all industry standards.

In review of the facts in a light most favorable to the non moving plaintiff, defendants met their initial burden establishing prima facie entitlement to summary judgment based upon their experts opinion that the design of the garment was not defective. Plaintiff failed to submit any proof to dispute that the garment was defectively designed and unsafe for its intended use. Although the rubbing garment may have caused an abrasion, such situation does not constitute strict liability and/or defective design and is equally consistent with wearing the girdle too tight, too loose, or other causes not attributed to a defective condition.

Accordingly, defendants' motion for summary judgment is granted. Defendants shall submit the order on notice with the transcript attached.

Dated this 30th day of March, 2005 at Rochester, New York.

________________________________

HON. WILLIAM P. POLITO

JUSTICE SUPREME COURT [*3]