Adams v. Electrolux Home Prods., Inc.

• Decision Date: 25 October 2019
• Docket Number: Index No. 155591/2013
• Parties: FRANK ADAMS and LAURA ADAMS, Plaintiffs v. ELECTROLUX HOME PRODUCTS, INC., ELECTROLUX HOME PRODUCTS, INC., OF AUGUSTA, GA., and 1210 ONLINE SALES, LLC d/b/a APPLIANCE SHOWROOM, Defendants 1210 ONLINE SALES, LLC d/b/a APPLIANCE SHOWROOM, Third Party Plaintiff v. TOP DIGITAL APPLIANCES, HARP HOME SERVICES, LLC, and JOHN DOE 1, Third Party Defendants
• Court: New York Supreme Court

2019 NY Slip Op 33191(U)

FRANK ADAMS and LAURA ADAMS, Plaintiffs
v.
ELECTROLUX HOME PRODUCTS, INC.,
ELECTROLUX HOME PRODUCTS, INC., OF AUGUSTA, GA.,
and 1210 ONLINE SALES, LLC d/b/a APPLIANCE SHOWROOM, Defendants

1210 ONLINE SALES, LLC d/b/a APPLIANCE SHOWROOM, Third Party Plaintiff
v.
TOP DIGITAL APPLIANCES, HARP HOME SERVICES, LLC,
and JOHN DOE 1, Third Party Defendants

Index No. 155591/2013

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: October 28, 2019
October 25, 2019

NYSCEF DOC. NO. 229

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

I. BACKGROUND

Defendants Electrolux Home Products, Inc., and Electrolux Home Products, Inc., of Augusta, Ga., move to quash and for a protective order against plaintiffs' notice of the deposition of Salim Kafiti Esq., an attorney employed by these defendants. C.P.L.R. §§ 2304, 3103(a). The notice also demands attorney Kafiti's production of documents at the deposition. C.P.L.R. § 3111. While Electrolux Home Products rightfully complains that

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the subjects on which plaintiffs seek to depose attorney Kafiti and to obtain documents are overbroad, because plaintiffs are to file a note of issue by November 15, 2019, the court grants the motion to the extent of narrowing the subjects, rather than permitting further delay by requiring plaintiffs to re-serve an acceptable notice. C.P.L.R. § 3103(a).

Plaintiffs sue for exposure to carbon monoxide from an Electrolux Home Free Standing Range, Model Number E3 0GF74HBS, due to incomplete combustion. The same model was recalled due to a similar defect, but the recall ended with ranges manufactured approximately six weeks before Electrolux Home Products manufactured the range that plaintiffs purchased and that they claim injured them. Plaintiffs seek to ascertain how this recall in 2009 originated; the number, nature, and processing of the complaints that led to the recall; who initiated it; how the period of the recall was determined; by whom; and why it did not encompass their range. Plaintiffs also seek to ascertain whether defendants complied with their obligations to report to the federal Consumer Product Safety Commission (CPSC) continuing defects or deficiencies in the model, which might have extended the period of the recall, and to ascertain any relevant details concerning a revision of the recall in 2011.

II. PRIOR DISCLOSURE PROCEEDINGS

Electrolux Home Products has produced three witnesses for depositions, its former Manager of Product Safety for Cooking Products, its Manager of Product Safety, and its Service

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Technician who communicated with plaintiff Laura Adams about plaintiffs' range. Plaintiffs never sought the deposition of attorney Kafiti by name, but they repeatedly sought the deposition of a witness knowledgeable about the recall, and Status Conference Orders repeatedly ordered Electrolux Home Products to produce a witness knowledgeable about the recall. None of the three witnesses Electrolux Home Products produced, however, was knowledgeable about the recall.

After the parties deposed Electrolux Home Products' third witness, a Status Conference Order dated January 17, 2018, specifically required the "Deposition of an Electrolux employee involved in the recall of the Icon 30 inch gas range and if no longer employed the names & addresses of all previous Electrolux employees involved in the recall process and their date of separation from Electrolux, within 45 days." Aff. of Jeffrey R. Brecker Ex. I, at 4. Electrolux Home Products finally responded via Supplemental Responses dated July 9, 2018, listing employees involved in the recall, all of which, except for attorney Kafiti, were no longer employed by Electrolux Home Products. A Status Conference Order dated March 28, 2019, then ordered:

Electrolux to present a witness w/ personal knowledge as to the issues and facts related to the recall of the Model Icon Line on or before May 13, 2019, pursuant to prior court orders, or if no such witness is under D's control, D to provide affidavit so stating, . . . and D to make good faith effort to produce such a witness in any event.

III. ATTORNEY KAFITI'S DEPOSITION AND PRODUCTION OF DOCUMENTS

Electrolux Home Products concedes that it employed attorney Kafiti during the recall in 2009, that he is knowledgeable about

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the recall, and that he remains under Electrolux Home Products' control, but that Electrolux Home Products has not produced him for a deposition, nor produced any other witness for a deposition since the March 2019 order. Plaintiffs thus have met their burden to show the inadequacies in defendants' previous witnesses' knowledge about relevant issues pertaining to the recall and to require the Electrolux Home Products to produce attorney Kafiti, the...