Joseph v. Yenkin Majestic Paint Corp.

• Decision Date: 25 June 1997
• Parties: , 1997 N.Y. Slip Op. 97,389 Theresa L. JOSEPH et al., Plaintiffs, v. YENKIN MAJESTIC PAINT CORP., Individually and Doing Business as Ohio Polychemical Company, et al., Defendants.
• Court: New York Supreme Court

Page 728

661 N.Y.S.2d 728

173 Misc.2d 95, 1997 N.Y. Slip Op. 97,389

Theresa L. JOSEPH et al., Plaintiffs, v. YENKIN MAJESTIC PAINT CORP., Individually and Doing Business

as Ohio Polychemical Company, et al., Defendants.

Supreme Court, Kings County.

June 25, 1997.

Turner & Owen, New York City (Sherman B. Kerner, of counsel), for PACOA, defendant.

Adrienne DeLuca, New York City, and James L. Lutfy, Staten Island, for plaintiffs.

Ahmuty, Demers & McManus, New York City (Patrick J. Kenny, of counsel), for Yenkin Majestic Paint Corp., defendant.

James L. Hasson, Staten Island, for Paint Fair Stores, Inc., defendant.

Fogarty & Fogarty, Mineola, for Sol Passick & Son, Inc., defendant.

Simon, Drabkin & Margulies, New York City (David D. Meltzer, of counsel), for Garco Shellac Company, Inc., and another, defendants.

Alio & Caiati, New York City, for Ralph Lewis and another, defendants.

Molod & Berkowitz, New York City, for R. Lewis Construction Company, Inc., defendant.

JAMES H. SHAW, Jr., Justice.

In this action to recover damages for personal injuries, defendant PACOA, an acronym for Paint Applicator Corporation of America, seeks summary judgment dismissing the complaint pursuant to CPLR 3212.

This lawsuit asserts claims of strict products liability, breach of express warranty, breach of implied warranty, and negligence against defendant PACOA and other defendants. The product alleged to be tortiously defective is Super Speed Seal--Prime Coat ("Super Speed Seal"), a liquid wood sealant that plaintiff alleges emits flammable vapors under conditions of ordinary use.

Plaintiff Theresa Joseph was employed by and working as a domestic servant in the home of defendants Ralph Lewis and Helen Lewis located at 535 East 19th Street, Brooklyn. Ralph Lewis owns defendant R. Lewis Construction Company, Inc. ("Lewis Construction") and he engaged his company to finish a newly installed wood floor in the basement of the Lewis's home. On July 25, 1989, defendant Lewis allegedly ordered two of his construction workers to apply Super Speed Seal to the floor.

On that date, as the Super Speed Seal was being applied to the floor, Joseph was in the basement engaged in her duties for the Lewis household. Plaintiffs allege that, as a result of the alleged lack of ventilation, the Super Speed Seal ignited and caused an explosion and a fire. Joseph, who was 33 years old at the time of the fire, allegedly sustained serious burns throughout her body, necessitating a prolonged hospitalization and several surgical skin grafts.

Defendant PACOA, in support of its motion for summary judgment, asserts that "it was not a distributor of the product, it was not in the chain of distribution of the product, and therefore it should bear no responsibility for the happening of the incident." The plaintiffs claim otherwise, pointing to the following allegations of PACOA's involvement herein:

(1) Defendant Garco Shellac Co., Inc. ("Garco") (the manufacturer of the Super Speed Seal) sold the product to PACOA (2) Invoices of defendant Primer Specialty Products Corp. ("Primer Specialty") (a branch of Garco) reflecting the sale of Super Speed Seal to defendant Sol Passick & Son, Inc. ("Sol Passick") (the retailer) were sent to PACOA;

(3) PACOA was the addressee on every invoice prepared by Primer Specialty for the sale of Super Speed Seal to Sol Passick;

(4) PACOA delivered each of Primer Specialty's invoices for Super Speed Seal to defendant Paint Fair Stores, Inc. ("Paint Fair Stores") (an incorporated association of paint retailers);

(5) An employee of PACOA then prepared Paint Fair Stores' checks, representing payment to defendant Primer Specialty;

(6) An employee of PACOA also prepared Paint Fair Stores' checks to itself, PACOA, in those situations where surcharges were due PACOA;

(7) An employee of PACOA prepared bills to defendant Sol Passick for the purchase of Super Speed Seal; and

(8) PACOA generally received payment from Paint Fair Stores for its participation in transactions for items that PACOA carried in its warehouse.

At the heart of plaintiffs' argument that PACOA is part of the distributive chain is Primer Specialty's bill to PACOA for the product.

Herbert Geismar, PACOA's Chief Executive Officer, states that PACOA made no profit and that no money came into the possession of PACOA or was paid by PACOA from this transaction; PACOA was not involved in the transaction other than receiving the invoices and passing them on to Paint Fair Stores for payment since the product, Super Speed Seal, was not carried in PACOA's warehouse; and PACOA was not a distributor of Super Speed Seal since it never supplied the item to any entity and never received any monies or profit for shipping and/or supplying the items.

Geismar explains that member stores of Paint Fair Stores, in addition to ordering items from the warehouse maintained by PACOA, could call vendors...