Janiya W.-G. v. Smith

• Decision Date: 12 April 2018
• Docket Number: Index 350663/08 ,6270A ,6270 ,83807/09 ,84155/09
• Citation: 74 N.Y.S.3d 530,160 A.D.3d 502
• Parties: JANIYA W.–G., etc., Plaintiff–Appellant, Janel G., etc., Plaintiff, v. Michael SMITH, et al., Defendants, Canje Discount, Inc., et al., Defendants–Respondents. Durst Corporation, Third–Party Plaintiff–Appellant, v. Hercules Chemical Company, Inc., et al., Third–Party Defendants–Respondents. Durst Corporation, Second Third–Party Plaintiff–Appellant, v. Hercules Chemical Company, Inc., et al., Second Third–Party Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 502

74 N.Y.S.3d 530

JANIYA W.–G., etc., Plaintiff–Appellant,

Janel G., etc., Plaintiff,

v.Michael SMITH, et al., Defendants,Canje Discount, Inc., et al., Defendants–Respondents.

Durst Corporation, Third–Party Plaintiff–Appellant,

v.Hercules Chemical Company, Inc., et al., Third–Party Defendants–Respondents.

Durst Corporation, Second Third–Party Plaintiff–Appellant,

v.Hercules Chemical Company, Inc., et al., Second Third–Party Defendants–Respondents.

6270

6270A

Index 350663/08

83807/09

84155/09

Supreme Court, Appellate Division, First Department, New York.

ENTERED: APRIL 12, 2018

Kelner & Kelner, New York (Joshua D. Kelner of counsel), for appellant.

Goldberg Segalla LLP, White Plains (William T. O'Connell of counsel), for Durst Corporation, respondent/appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Paul M. Tarr of counsel), for Canje Discount, Inc., respondent.

McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for Oatey Supply Chain Services, Inc., respondent.

O'Connor Redd LLP, Port Chester (Joseph M. Cianflone of counsel), for Hercules Chemical Company, Inc., respondent.

Sweeny, J.P., Richter, Andrias, Webber, Moulton, JJ.

Orders, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered June 28, 2016, which, to the extent appealed from, denied the infant plaintiff's motion for summary judgment as to liability as against defendants Canje Discount, Inc. and Durst Corporation and to amend the complaint to add a demand against Durst for punitive damages, granted Canje's and Durst's motions for summary judgment dismissing the complaint and all cross claims against them, and granted third-party and second third-party defendants' motions for summary judgment dismissing all claims as against them, unanimously modified, on the law, to deny Canje's and Durst's motions as to the negligence claims as against them, the negligent performance of contract claim as against Durst, and any cross claims against them based on those claims, and otherwise affirmed, without costs.

As plaintiff does not allege that the sulfuric acid drain opener that allegedly caused her injuries was defectively designed or manufactured or that there was a failure to warn, no claim for strict products liability lies ( Gebo v. Black Clawson Co., 92 N.Y.2d 387, 392, 681 N.Y.S.2d 221, 703 N.E.2d 1234 [1998] ).

Because defendant Canje, the retail outlet at which the product was purchased, never agreed to abide by the sale policy of the manufacturer, third-party defendant Hercules Chemical Company, Inc., to restrict the sale of the product to plumbing and/or building professionals, it cannot be held liable for launching a force of harm in negligent discharge of a contractual obligation (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). However, issues of fact exist whether defendant Durst, the distributor that sold the product to Canje, had a contractual duty to refrain from selling the product to Canje and whether Durst breached this duty and its acknowledged contractual undertakings to take appropriate steps to assure the proper sale and use of the product and to comply with the Seller's Notice prohibiting sales to non-professionals and the display of the product where it was easily accessible. Durst argues that even if it breached such a duty it did...