Galluscio v. Atico Int'l United States, Inc.

• Decision Date: 27 August 2013
• Citation: 971 N.Y.S.2d 190,2013 N.Y. Slip Op. 23287,41 Misc.3d 576
• Parties: Michele GALLUSCIO, as Administratrix of the Estate of Jerome J. Galluscio, Plaintiff, v. ATICO INTERNATIONAL U.S., INC., “ABC MANUFACTURING CORP.” a fictitious corporation and CVS Pharmacy, Inc., Defendants.
• Court: New York Supreme Court

41 Misc.3d 576
971 N.Y.S.2d 190
2013 N.Y. Slip Op. 23287

Michele GALLUSCIO, as Administratrix of the Estate of Jerome J. Galluscio, Plaintiff,
v.
ATICO INTERNATIONAL U.S., INC., “ABC MANUFACTURING CORP.” a fictitious corporation and CVS Pharmacy, Inc., Defendants.

Supreme Court, Nassau County, New York.

Aug. 27, 2013.

[971 N.Y.S.2d 191]

Frank C. Panetta, Esq., Garden City, for Plaintiff.

Biederman–Hoenig–Semprevivo, New York, for Defendants.

ARTHUR M. DIAMOND, J.

[41 Misc.3d 577]The motion by defendant Atico International USA, Inc for summary judgment pursuant to CPLR § 3212 is denied.

Plaintiff brought this wrongful death action under the various theories of strict product liability, defective warning, and negligence for the alleged defective manufacturing and distribution of a heating pad purchased by the deceased at CVS pharmacy that allegedly caused his death three years later. The deposition testimony by Gerald Katz, the Senior Vice President of Merchandising and Marketing indicates that the defendant Atico International USA was not involved in the design testing, manufacturing, sale, shipping or distribution of the product. According to Mr.Katz, the defendant acted solely as a sourcing company providing CVS Pharmacy the name of another company, Atico Asia, who located a manufacturer in China for the manufacturing of heating pads as requested by CVS Pharmacy. The defendant and Atico Asia are separate entities. The product was manufactured in China and then sold by Atico Asia to CVS and the manufacturer then shipped directly the heating pads to CVS Pharmacy. (Order to Show Cause, Exhibit D, pp. 18, 25 and 5). It is clear from his testimony that the defendant did not design or produce the product, nor was it involved in the packaging or marketing of the product.(Order to Show Cause, Exhibit D, p. 17). Nor did Atico USA perform any testing or evaluation of design of the product. (Order to Show Cause, Exhibit D, pp. 40, 43). However, the defendant did provide instructions for the product which it claims that plaintiff did not read, and added any additional safety information required in instruction for use manuals. (Order to Show Cause, Exhibit D, p. 51).

Strict products liability for defective products applies to “any one responsible for placing the defective product in the marketplace including distributors, retailers, processors of materials, and makers of components.” Brumbaugh v. CEJJ, 152 A.D.2d 69, 71, 547 N.Y.S.2d 699 [3rd Dept.1989]....