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PLAINTIFF’S PROOF THAT DEFENDANT SUPPLIED THE ALLEGEDLY DEFECTIVE WIRE MESH TO THE RETAILER IN THIS PRODUCTS LIABILITY ACTION WAS SPECULATIVE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Prime Source’s motion for summary judgment in this products liability case should have been granted. Plaintiff alleged he was injured when a roll of wire mesh recoiled and struck him. Prime Source presented it was not in the manufacturing or distribution chain of the wire mesh and plaintiff’s proof too speculative to raise a question of fact:

In strict products liability, a manufacturer, wholesaler, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product regardless of privity, foreseeability, or the exercise of due care … . Liability, however, may not be imposed upon a party that is outside the manufacturing, selling, or distribution chain … . The identity of the manufacturer or supplier of a defective product may be established by circumstantial evidence … . The circumstantial evidence of the identity of the manufacturer or supplier of a defective product causing personal injury must establish, however, “that it is reasonably probable, not merely possible or evenly balanced, that the defendant was the source of the offending product” … . “Speculative or conjectural evidence of the manufacturer’s identity is not enough” … .

Prime Source established its prima facie entitlement to judgment as a matter of law by demonstrating that it was outside the manufacturing, selling, or distribution chain of the mesh … . In opposition to the motion by Prime Source, the plaintiff’s attorney submitted an affirmation in which he stated that on the return date of the order to show cause which commenced the proceeding to obtain pre-action disclosure, a representative from Sand Man [the retailer] “produced a sheet of paper on which she had written the names of two suppliers she claims had supplied wire mesh to Sand Man” prior to the date of the subject accident. This affirmation was insufficient to raise a triable issue of fact, because it did not establish “that it is reasonably probable, not merely possible or evenly balanced” … that Prime Source, rather than Steel Services, was the source of the mesh … . The plaintiff failed to come forward with any evidence “that might permit a reasoned inference” that Prime Source, rather than Steel Services, supplied the mesh to Sand Man … . Tyminskyy v Sand Man Bldg. Materials, Inc., 2019 NY Slip Op 00632, Second Dept 1-30-19

 

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