Whelan by Whelan v. GTE Sylvania Inc.
| Decision Date | 09 April 1992 |
| Citation | 182 A.D.2d 446,582 N.Y.S.2d 170 |
| Parties | Thomas WHELAN, an infant, by Thomas M. WHELAN, his parent and natural guardian, and Thomas M. Whelan, Plaintiffs-Respondents, v. GTE SYLVANIA INCORPORATED, et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and CARRO, KASSAL and SMITH, JJ.
Order, Supreme Court, New York County (William J. Davis, J.), entered October 17, 1990, which denied the defendants' motion and cross-motion for summary judgment dismissing the complaint pursuant to CPLR 3212, unanimously reversed, on the law, the defendants' motion and cross-motion for summary judgment dismissing the complaint granted as to all defendants, without costs. Appeal from the order of the same court and justice, entered March 8, 1991, which denied the defendants' motion and cross-motion for renewal and reargument is dismissed as academic, without costs.
This is a personal injury action sounding in negligence, breach of warranty and strict products liability. The complaint alleges, inter alia, that on August 12, 1983, the infant-plaintiff was injured when a GTE Sylvania 75 or 100 watt incandescent light bulb that had been purchased at the Pergament Home Center in Staten Island during the 1983 July 4th sale exploded while in use. It is claimed that defendant GTE Products Corp. ("GTE", incorrectly sued herein as GTE Sylvania Inc. and Sylvania Products, Corp.) negligently manufactured and sold a defective light bulb to the Pergament defendants who then sold it to the plaintiff-father.
GTE sought summary judgment and dismissal of the complaint on the grounds that it had not manufactured the bulb in question and that GTE had not sold its bulbs to Pergament since 1977. In support of its motion, GTE submitted an affidavit from David Fox, an Engineering Manager for incandescent light bulbs at GTE. In that affidavit, Fox stated that he had examined fragments of the allegedly defective bulb that had been provided by plaintiffs. Fox stated that the fragments were from a generic Phillip's 60 watt bulb and a three-way bulb. Fox stated:
The reason it is clear that the other set of fragments is from a three-way bulb is the configuration of the filament. Three-way bulbs and GTE-Sylvania 75-100 watt bulbs have different filament configurations. The filament produced by plaintiff's counsel as part of the bulb involved in this incident is of a three-way bulb and not of a GTE-Sylvania 75-100 watt bulb. * * * It is impossible for the bulb fragments I examined to be from a GTE-Sylvania 75-100 watt bulb, because of the filament configuration.
GTE also submitted Fox's deposition transcript which indicated that GTE had not sold bulbs to Pergament since at least 1977-78.
The Pergament defendants then submitted an affidavit in support of their cross-motion for summary judgment and of the GTE motion. The affidavit was by David Levine, Senior Divisional Merchandise Manager for the Pergament Home Centers. Levine stated that a search of Pergament's sales and invoice records for the period prior to the accident revealed that they had stopped purchasing bulbs from GTE in 1977.
In opposition to the motion and cross-motion, an affidavit by the plaintiff-father reiterated unequivocally the claim that the exploding bulb was in fact a 75-100 watt GTE Sylvania light bulb and that he had purchased it at Pergament during the 1983 July 4th sale. Plaintiffs also submitted an expert's affidavit of merit from Martin M. Sackoff, Ph.D., a graduate chemist and Executive Director of Laboratories of the International Testing Laboratories, Inc. Dr. Sackoff concluded from his examination of the fragments provided by plaintiffs that the manufacture of the bulb was substandard and a departure from accepted manufacturing practices. Specifically, he believed that water vapor had become trapped in the bulb during the manufacturing process. When the bulb was in use, the heat caused the water vapor to expand which placed excessive stress on the glass causing it to shatter.
By order entered October 17, 1990, the IAS court denied defendants' motion and cross-motion on the grounds (1) that an issue of fact existed with respect to whether Pergament sold GTE light bulbs after 1977-78 because the Staten Island store could have purchased them from another source or received them as a transfer from another Pergament store or some other source, (2) that an issue of fact existed regarding the identity of the bulb because the Fox affidavit denying that the bulb was manufactured by GTE was countered by an affidavit of the plaintiff-father and testimony of the plaintiff-son that the defective bulb was a GTE bulb, and (3) that Fox, as an employee, was an interested witness and his credibility should be determined by a jury.
GTE then moved for renewal and/or reargument alleging a misapprehension of facts and misapplication of law. Also, because of the IAS court's effective rejection of the Fox affidavit, GTE submitted the affidavit of a non-employee expert. The affidavit of Ronald Caporali, doctorate in ceramic science and president of Advanced Glass Science, Inc., echoed the most significant conclusion in the Fox affidavit: the fragments provided by plaintiffs were from a three-way bulb and not a GTE Sylvania 75 or 100 watt bulb. Dr. Caporali specifically stated in his affidavit:
Since the light bulb fragments contain two filament wires, the bulb must be a three-way bulb. Single-wattage bulbs, such as a 75- or 100-watt bulb, contain one single filament. Three-way bulbs contain two filaments which light alternatively or together to make up the three different wattages of a three-way bulb. In addition, the base has two separate electrical contacts; one for each of the two filaments. Single-wattage bulbs only have one electrical contact.
The Pergament defendants cross-moved for reargument alleging that the IAS court had overlooked the fact that Pergament maintained a centralized buying department for all of its stores and that no individual Pergament...
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...falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc., 182 A.D. 2d 446). The court's role is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp., 3 N......
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