Kivat v Kershis
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Kivat v Kershis 2011 NY Slip Op 33477(U) December 21, 2011 Sup Ct, Suffolk County Docket Number: 08-11299 Judge: Thomas F. Whelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. SHORT FORM ORDER 08-11299 SUPREME COURT - STATE OF NEW YORK LA.S. PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 7-21-11 (#001) MOTION DATE 8-26-11 (#002) ADJ. DATE 9-23-11 Mot. Seq. # 00 I - MotD #002-MD ---------------------------------------------------------------X BENJAMIN KIVAT, Plaintiff, TIERNEY & TIERNEY, ESQS. Attorney for Plaintiff 409 Route 112, P.O. Box 995 Port Jefferson Station, New York 11776 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP Attorney for Defendants Kershis 3 Gannett Drive White Plains, New York 10604 - against - HEIDELL, PIHONI, MURPHY & BACH, LLP Attorney for Defendants Gabriel 1050 Franklin Avenue Garden City, New York] 1530 FRANK KERSHIS, FRANK KERSHlS, P.T., P.C., RJCK GABRIEL, RICK GABRJEL P.TA, P.c. and HYGENIC CORPORATION, Defendants. TROMELLO, MCDONNELL & KEHOE Attorney for Defendant Hygenic Corporation P.O. Box 9038 Melville, New York 11747 ---------------------------------------------------------------X Upon the following papers numben~d 1 to ----iL read on this motion for summary judgment: motion to strike pleading; Notice of Motion! Order to Show Cause and supporting papers I - 19 ; Notice of Cross MOlion and supporting papers 2043 ; AnswcringAffidavits and supporting papers 44 - 45; 46 - 47: 48 - 49 ; Replying Affidavits and supporting papers 50.:il.-: Othcr _; (and l1ft~r heal illg C<'hlli~dill Mp!,ort ,md oppo:sed to :1..: l . ¢otion) it is, ORDERED that the motion by defendant Hygenic Corporation for, inter alia, summary judgment dismissing plainti:f:rs complaint and all cross-claims against it is determined as follows; and it is further ORDERED that the cross motion by plaintiff for an order pursuant to CPLR 3126 striking the answer of the defendant Kershis and defendant Gabriel on the ground that they spoliated evidence is denied. [* 2] Kivat v Kershis Index No. 08-11299 Page NO.2 Plaintiff Benjamin Kivat commenced this action to recover damages for personal injuries allegedly sustained on August 9, 2007 while he was receiving physical therapy treatment at a facility operated by defendant Frank Kershis. PT., r.c, which is owned by defendant Frank Kershis_ Plaintiffs injuries allegedly were sustained when the latex exercise band he was using to perform stretching exercises snapped. The complaint alleges that Kershis and defendant Rick Gabriel, a physical therapist assistant failed to properly maintain and inspect the exercise band utilized by plaintiff prior to the incident. The complaint also alleges causes of action sounding Il1 negligence, strict products liability and breach of warranty against derendant Hygenic Corporation, which allegedly manufactured the exercise band. Hygenic now moves for summary judgment dismissing the complaint and all cross claims against it on the grounds that it cannot be established that it is the manufacturer of the subject exercise band, and that the accident was not necessarily attributable to a defect in the exercise band. Hygenic also moves for an order pursuant to CPLR 3126 dismissing the complaint and cross claims against it, arguing that spoliation of evidence makes it impossible to detennine what entity manufactured the elastic band and what caused the band to break. In support of its motion, Hygenic submits, among other things. copies of the pleadings, a copy or the instruction manual for the Thera-Band brand exercise bands, transcripts of the parties' deposition testimony and a transcript of the deposition testimony of Chris Meglvevich. Gabriel opposes the branch of Hygenic's motion to dismiss the cross claims against it, arguing that there was no showing or bad faith or unreasonable neglect to support a claim of spoliation of evidence. Plaintiff cross-moves to strike the answers of Kershis and Gabriel based upon spoliation of evidence. Plaintiff also opposes Hygenie's motion for summary judgment, arguing that I-lygenic is the manufacturer of the subject band and that the band did not perform as intended. In support, plaintiff submits, among other things, copies of the plcadings, copies of various purchasc records by Empi Inc. and Kcrshis, and correspondence with the assistant general counsel of Empi. Gabriel opposes plainti ff' s cross motion, arguing that he was not responsible for the subject exercise band and that he did not discard it. Kershis also opposes the cross motion and asserts that he had no reason to anticipate that litigation would arise as a result of the latex band snapping. At his examination before trial, plaintiff testified that allcr a motor vehicle accident and subsequent shoulder surgery, his treating physician prescribed physical therapy treatment and relcrred him to Kershis. He testified that he was performing exercises with an elastic exercise band during a therapy session when the band snapped. He explained that as he was laying on his back v'lith his arms abovc him holding the exercise band, the band broke as he was pulling it down towards the floor. At his examination before trial, Kershis testilied that he is a certified physical therapist and that plaintifTwas referred to his ofllce for physical therapy. He testified that as part ofplaintitrs treatmcnt, exercise bands were used to perform certain exercises. He explained that an exercise band is essentially a thin, long rubber band which is used for strengthening and conditioning exercises. Mr. Kershis stated that the exercise bands in his office would be changed when they became dirty, and that the bands would become dirty before they lost their "integrity." He testified that all of his employees can make a determination as to when the bands need to be replaced. !-Iefurther testified that Cabriel was in charge [* 3] Kivat v Kershis Index No. 08-11299 Page No.3 of purchasing the bands, and that the bands were purchased from a company known as Empi At his examination before trial, Gabriel testified that he is a physical therapist assistant and works as an independent contractor for Frank Kcrshis Physical Therapy. He testified that the employees in the office visually inspect the exercise bands to determine if they need to be replaced prior to a patient using the them. He testified that on the day of the incident, plaintiff was performing exercises using a green band when the band broke, and that he evaluated plaintiffs shoulder alter the incident. Gabriel stated that the "Thera-Bands break all the time, so it's not a big deal," and that the bands are thrown out when they break. He testified that Chris Meglvevieh, a physical therapy aide at the office, threw the broken band in the garbage. He fmiher testified thaLhe was not responsible for ordering the exercise bands, but that when he has ordered the bands, they were purchased from a company known as Empi. At his examination before trial, Dr. Phil Page, Director of Education and Research for l-lygenic, testified that his duties include coordinating the clinical education as well as managing the clinical research that is performed with the company's products. He testified that Hygenic manufactures elastic exercise bands which have the brand name Thera~Band printed on them, and that he is not aware of any complaints regarding those bands. He testified that the exercise bands. which are packaged in rolls, have different resistence levcls, and that different colors are used to identify the diflcrent amounts of resistance. Dr. Page testified that Empi Distribution is a distributor for Thera-Bands and other rehabilitation products. Hc testified that Hygenic has a quality assurance program to inspect the bands prior to distribution. He also testified that an exercise band may break if it has a tear or has been used for a long period of time, ifit has been stored improperly, and if it is stretched too far. He testified that there is no time period as to when the exercise bands should be replaced, but that if there is visible damage to a band, such as cracking and tearing, it should be replaced. There is a general rulc that one of the elements <l plaintiiTin a strict products liability action must establish by competent proof is that it was the defendant who manufactured the product and placed it in the stream of commerce (see Healey v Firestone Tire & Rubber Co., 87 NY2d 596, 601, ()40 NYS2d 860 [19961; Hvmowitz I' Eli Liffy & Co., 73 NY2d 487, 504, 541 NYS2d 941 [1989]; D'Amico I' Malllljacturers Hallover Trust Co., 173 AD2d 263, 265, 569 NYS2d 962 [151 Dept 1991]). The identity of the manufacturer of a defective product may be established with circumstantial evidence, even if the allegedly detective product was dcstroyed altcr use (Healey v Fires/olle Tire & Rubber Co.. supra; see e_g Otis v Bausch & Lomb, 143 AD2d 649, 532 NYS2d 933 [2d Dept 1988]). If a plaintifT relies on circumstantial evidence to establish the identity of the manufacturer. such evidence "must establish that it is reasonably probable, not merely possible or evenly balanced, conjecture evidence of the manufacturer's identity is not enough" (Healy v Firestolle Tire & Rubber Co., supra, at 601-602; Browll v £Im Plumbillg Supply, Ltd., 271 A02d 469, 706 NYS2d 86 [2d Oept 1999]; Escarria v Americall Gage & Mfg. Co.. 261 AD2d 434, 690 NYS2d 86 [2d Oept 19991). Strict products liability or liability for breach of warranty may not be imposed upon a party outside the manufacturing, selling or distributive chain (see Spall/wllz v Hamptoll C.F. Corp., 294 AD2d 424, 741 NYS2d 917 !2d Dep! 20021; Joseph I' Yellkill Majestic Pai" Corp., 261 AD2d 512; 690 NYS2d 611 [2d Depl 1999]). Furthermore, in a products liability action where the alleged defective product is unavailable for tcsting, liability may be proven by circumstantial evidcnce, such that the plaintiflnced not identify a [* 4] Kivat v Kershis Index No. 08-11299 Page No.4 specific product defect (see Ramos v Howard flldus., fllc .. 10 NY3d 2i8, 855 NYS2d 412 (2008]: Speller v Sears, Roebuck & Co., 100 NY2d 38, 760 NYS2d 79 [2003J). However, ·li In order to proceed in the absence of identifYing a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product's alleged lailure that are not attributable to the defendants" (see Speller v Sears, Roebuck & Co., supra at 42). In order to defeat summary judgment, the non-movant must raise a triable question of fact by offering competent evidence which, if credited by the fact finder, is suflicient to rebut the movant's alternative cause evidence (see Ramos v Howard Indus., fnc., supra; Speller v Sears, Roebuck & Co., supra). In any event, where the circumstantial evidence presented leads to a genuine dispute as to the causation of the accident~ summary judgment is not appropriate unless "only one conclusion may be drawn fhlm the established facts" (see Speller v Sears, Roebuck & Co., supra at 43). J iere, although plaintiff must establish at trial the identity of the manufacturcr of the allegcdly defective band, Hygenic, which is seeking summary judgment dismissing the complaint and cross claims against it on the ground that it was not the manufacturer orthe allegedly defective band, has the initial burden of establishing as a matter of law that it did nol manufacture the product (see Bevells v Tarrant Mfg. Co., Ille., 48 AD3d 939, 851 NYS2d 707 [3d Dept 2008]; Bawll v Eeo-Tec,llle., 5 AD3d 842. 773 NYS2d 161 [3d Dept 2004]; Abulhasan v Uniroyal-Goodrich Tire Co., 14 AD3d 900, 788 NYS2d 497 [3d Oept 2005]). Hygenic asserts that as the subject band has been discarded, plaintiIT is not able to identify it as the manufacturer of the allegedly defective band. However, the discarded band is not necessarily dispositive of plaintiffs claim, for the identity of its manufacturer as well as the existence and nature of a defect may be proven circumstantially (see Healey v Firestolle Tire & Rubber Co., supra). Merely highlighting apparent gaps in its adversary's case does not entitle the moving party to summary judgment (see Clark v Globe Bus. Furniture, 237 AD2d 846, 655 NYS2d 184 [3d Oept 1997]; AlltOUliCci v Emeco Indus, 223 A02d 913, 636 NYS2d 495 [3d Dcpt 1996"1).Moreover, plaintiff submits, among other things, invoices from J-1ygenicsto Empi regarding the sale on·heraBands from JanualY I, 2006 until August 9, 2007, as well as an invoice for the Thera-Bands from defendant Kershis' atTice dated March 30, 2007. While defendant has failed to establish that it was not the manufacturer or tile subject band. it has established that there was a likely cause of the band snapping unrelated to any defect in the design or manufacture of il (see D'Auglute v Shanty Hollow ('orp., 26 AD3d 403, 809 NYS2d 555 [2d Dept 2006]; Galletta v Snapple Beverage Corp., 17 I\.D3d 530, 793 NYS2d 467 [2d Dept 2005]). I fere, the deposition testimony of Dr. Page shows that Ilygcnic has a quality assurance program in place to inspect the bands prior to distribution. It shows that an exercise hand may break ifil has a tear, ifit has been used for a long time, ifit has been stored improperly or ifil has been stretched too far. In opposition. plaintiff failed to come fonvard with competent evidence demonstrating that the product had a specilic flaw which caused the accident or, in the alternative, that the product did not perlornl as intended while excluding all possible causes for the malfunction not attributablc to defendant (see Speller v Sears, Roebuck & Co., supra; Wallace v Sitma U.S.A., 77 A03d 918, 910 NYS2d 136 l2d Dept 20 I0]; D'Elia v Martill A. Gleason, fllc.~ 250 AD2d 803, 674 NYS2d 383 [2d Oept 19981). Instead, plaintiff merely asserts that, as the exercise band broke, it did not perform as intended. Likewise, Kershis and Gabriel also failed to produce any evidence that the exercise bands were defective. Accordingly, the motion by Hygenic for summary judgment dismissing plaintirrs complaint and all cross claims against it is [* 5] Kivat v Kershis Index No. 08- I 1299 Page No.5 granted. As to plaintiffs cross motion 10 strike the answers of Kersh is and Gabriel, the Court has broad discretion in detcnnining the appropriate sanction for spoliation of evidence (see De Los Santos v Polanco, 2\ AD3d 397, 799 NYS2d 776 [2d Dept 2005 J). Spoliation sanctions may be appropriate where a party negligently loses or intentionally destroys key evidence (Kelley v Empire Roller Skating Rink, fnc., 34 AD3d 533, 827 NYS2d 70 l2d Dept 2006]). However, where the plaintiffs and the defendants are equally affected by the loss orthe items and neither have reaped an unfair advantage in the litigation, it is improper to dismiss a pleading on the basis of spoliation (see De Los Santos JI Polanco, supra; Lawson v Aspen Ford, 15 AD3d 628, 629-630, 791 NYS2d 119l2d Dept 20(5); /fraimov v Pltoenix /lUlll.\'. Gas, 4 AD3d 332, 334, 772 NYS2d 78 [2d Dcpt 2004]). iIere, plaintill has failed to demonstrate that the disposal of the subject band was the result of intentional or negligent spoliation (see Kelley v Empire Roller Skating Rink, fill:., supra; Andretta v Lenahan, 303 AD2d 527, 756 NYS2d 454 [2d Dept 200T]). Moreover, plaintitT did not advise defendants that he intended to bring a suit against them and did not request that defendants prcscrve the band for inspection (see Piazza v Great Atlantic lllld Pacific Tea Compauy, fnc., 300 AD2d 381, 753 NYS2d 86 [2d Dept 2002]). Accordingly, plaintifrs cross motion is denied. Datcd_IdJ c2tf LL THOMAS F. JIELAN, J.S.c.
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