Suneson v NWL Holdings, Inc.

[*1] Suneson v NWL Holdings, Inc. 2008 NY Slip Op 52310(U) [21 Misc 3d 1131(A)] Decided on October 6, 2008 Supreme Court, Nassau County Lally, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2008
Supreme Court, Nassau County

Lisa Suneson, Plaintiff(s),

against

NWL Holdings, Inc. d/b/a NATIONAL WHOLESALE LIQUIDATORS, NATIONAL WHOLESALE LIQUIDATORS BUYING, INC. d/b/a/ NATIONAL WHOLESALE LIQUIDATORS, NATIONAL WHOLESALE LIQUIDATORS, INC., NATIONAL WHOLESALE LIQUIDATORS OF SPRING VALLEY, INC. d/b/a NATIONAL WHOLESALE LIQUIDATORS, NWL OF NANUET, INC. d/b/a NATIONAL WHOLESALE LIQUIDATORS OF NANUET, INC. and PACTIV CORPORATION, Defendant(s).



10054/06

Ute W. Lally, J.

It is ordered that this motion by defendants NWL Holdings, Inc. d/b/a National Wholesale Liquidators, National Wholesale Liquidators Buying, Inc. d/b/a/ National Wholesale Liquidators, National Wholesale Liquidators, Inc., National Wholesale Liquidators of Spring Valley, Inc. d/b/a National Wholesale Liquidators, NWL of Nanuet, Inc. d/b/a National Wholesale Liquidators of Nanuet, Inc. (collectively referred to as National Wholesale Liquidators or NWL) pursuant to CPLR 3212 for summary judgment dismissing the complaint and cross-claims on the grounds that National Wholesale Liquidators did not sell the allegedly defective product, or in the alternative, for common law indemnification as against defendant Pactiv Corporation, the manufacturer of the allegedly defective product is denied in its entirety.

The complaint alleges that plaintiff sustained second and third degree burns to various parts of her upper body when a disposable aluminum pan she was removing from the oven collapsed. The contents, consisting of hot pasta and sauce, spilled over her [*2]upper body. She alleges that her mother-in-law, Dolores Buckenberger, with whom she shares a home and kitchen, purchased the pan at a nearby National Wholesale Liquidators in Nanuet, as she does at holidays every year. Plaintiff brings this action sounding in strict products liability, failure to warn, breach of express and implied warranty, and negligence.

The offending pan, known as a half-size steam table pan, was manufactured by defendant Pactiv Corporation. Chadd Chatterton, who testified at deposition on behalf of Pactiv and whose duties included, inter-alia, tooling development for foil containers, testified that the subject pan was a commercial pan of the type sold packed in boxes in bulk to industrial users and not sold to consumers. The product contains no warning label or information regarding use as the intended buyers are institutional people who know their own products and "what requirements . . . they need in their pan before they buy it." Pans sold to the general public include advice on the proper use of the pan. He testified that the subject pan was defective as it contained numerous "voids" in the metal which caused holes and weakness. The pan would have been rejected for manufacturing defects if discovered at the factory.

It is undisputed that Pactiv did not sell industrially packaged pans to National Wholesale Liquidators. National Wholesale Liquidators contends that the subject pan has Pactiv manufacturer's markings and the one sold in its stores have the manufacturing marks of Durable, Inc. NWL contends that it checked computer records, including discontinued vendors and that it never did business with Pactiv Corporation. National Wholesale Liquidators now seeks summary judgment or indemnification from Pactiv.

The proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853). Then the burden shifts to plaintiff "to produce evidentiary proof in admissible form establishing the existence of material questions of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 326-327). A movant's failure to meet its burden of proof mandates denial of the motion regardless of the sufficiency of the opposing papers (1014 Fifth Ave. Realty Corp. v The Manhattan Realty Co., 67 NY2d 718).

National Wholesale Liquidators has not make out a prima facie case as a matter of law. While NWL has arguably made out a [*3]prima facie case that it did not buy directly from Pactiv, it has not established that it did not buy Pactiv pans from a wholesaler, distributor or other middle man in 2003. There is evidence that NWL buys from wholesalers, as the deposition testimony of Robert Pigeon indicates that he was hired to "merchandise and buy from distributors." Accordingly, while NWL shows that it did not purchase pans from Pactiv, it has not shown that it did not purchase Pactiv pans from a distributor in 2003, the year the subject pan was purchased. It has submitted only evidence regarding its purchase orders for manufacturer Durable, Inc. for the year 2003. There is no indication that it searched distributor records.

In any event, the testimony of non party Dolores Buckenberger that she purchased the subject pan at National Wholesale Liquidators in Nanuet, New York raises a factual issue. It is not the role of the court to determine the credibility of witnesses, neither NWL nor Buckenberger, on a summary judgment motion (Dykeman v. Heht, 52 AD3d 767, 769). Moreover, "since summary judgment is the procedural equivalent of a trial, it must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable" (Dykeman v. Heht, supra).

With regard to the cross-claim for indemnification, Pactiv asserts that there are unresolved triable issues regarding NWL's culpability for selling a commercial pan to consumers with no warning labels, for misrepresenting the pans as suitable for lasagna by placing them with deep dish lasagna pans, and by failing to inspect and remove from inventory a pan with visible holes and cuts made to examine the thickness of the aluminum. If NWL did indeed sell Pactiv pans purchased from a wholesaler, and sold such pans in the manner in which it has testified that it does, i.e., unexamined and unwrapped in a stack from which purchasers may take as many as they like, the extent to which the pan defects were either patent or latent is not clear enough to determine as a matter of law whether NWL should have or need not have discovered the defect and removed it from the store (Naples v. City of New York, 34 AD2d 577[retailer is under a duty to inspect for and to discover such defects as a reasonable physical inspection would disclose]; see also Sideris v. Simon A. Rented Services, 254 AD2d 408, 409). Accordingly, a question of fact regarding NWL's culpability, if it sold the subject pan, is presented.

The court disagrees with NWL's contention that it need not address wholesale matters because it has submitted its purchase orders for manufacturer direct purchases. Having an employee hired to "merchandise and buy from distributors", NWL was [*4]obligated to address purchases from distributors as well as purchases from manufacturers.

Dated: __________________ _______________________________

J.S.C.