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SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
Present:
HON. EDWARD W. MC CARTY, II
Justice
TRIAL/lAS , PART 2
NASSAU COUNTY
JOHN PATERNO and PAULA PATERNO
Plaintiff(s)
INDEX No. 6668/05
-againstSUB-ZERO FREEZER CO. , INC. , INVENSYS
CONTROLS, and MR. JAY APPLIANCES
ANNEX , INC.
MOTION DATE:8/7/07
MOTION SEQ. #002- 003
Defendant( s)
The following papers read on this motion:
Notice of Motion/Order to Show Cause
Cross- Motion
Answering Affidavit
Replying Affidavits
Motion (#002) by defendants Sub- Zero Freezer Co. , Inc. (hereinafter Sub-Zero
and Mr. Jay Appliances Annex , Inc. (hereinafter Mr. Jay ) for an order pursuant to CPLR
3212 granting summary judgment dismissing plaintiffs ' complaint and any and all cross
claims against defendants Sub-Zero and Mr. Jay and granting summary judgment against
defendant Invensys Controls (hereinafter Invensys ), and motion (#003) by defendant
Invensys for an order pursuant to CPLR 3212 granting summary judgment dismissing
plaintiffs' complaint , are decided as set forth herein.
In this product liability action , plaintiffs allege that a water valve manufactured by
defendant Invensys and installed as a component in a refrigerator/freezer manufactured
by defendant Sub- Zero , purchased by plaintiffs from defendant Mr. Jay, cracked , causing
extensive water damage to plaintiffs ' residence.
It is undisputed that the subject water valve manufactured by defendant Invensys
and included by defendant Sub-Zero as a component in the subject refrigerator/freezer
did in fact crack. It is also undisputed that other valves of the same design manufactured
by defendant Invensys have also cracked. It also further appears that none of the other
plumbing fixtures at plaintiffs ' premises cracked , leaked or broke at the time of the subject
incident. It is also undisputed that the premises owned by the plaintiffs , where the subject
refrigerator was located , did sustain water damage.
Plaintiffs ' complaint , as amended , alleges causes of action against each of the
defendants for: (1) strict products liability; (2) breach of implied warranties; (3) negligence
and (4) failure to warn.
With regard to plaintiffs ' failure to warn claim , plaintiffs in their sur-reply concede that
such claim only applies to defendant Sub- Zero , not defendant Invensys. Defendant SubZero argues that plaintiffs ' failure to warn cause of action should be dismissed as against
it because plaintiffs ' claim that they should have been warned not to let the temperature
of their residence drop below freezing or water damage might result , was obvious and
known to plaintiffs. However , defendant Sub- Zero ignored the other warning plaintiffs
claim they should have been given , that all water piping to the residence should be
insulated or water damage might result. Defendant Sub-Zero s argument did not address
this proposed warning except belatedly in its reply, which is too late for consideration by
this Court. (See Shapiro v Shapiro 35 AD3d 585. ) Plaintiffs ' cause of action for failure
to warn as against defendant Sub-Zero stands , but is dismissed as against defendant
Invensys.
With regard to plaintiffs ' other causes of action , defendants basically argue that
plaintiffs cannot establish a prima facie case because they cannot prove any design
defects in the subject valve and further cannot prove that any such alleged defects were
the proximate cause of the water damage to plaintiffs ' premises. Defendants argue that
the report of plaintiffs ' expert Riley is speculative , conclusory and fails to raise issues of
fact sufficient to defeat defendants ' motions for summary judgment. The Court does not
agree. Plaintiffs ' expert Riley provides sufficient basis for his conclusions. However , there
is some weakness in his report as to whether the design changes he suggests could have
avoided the damages incurred by plaintiffs.
This weakness in Riley s report is compensated for in the report of plaintiffs ' expert
Wakeman , who opines that the valve was not only defective in its material , but in its failure
to have a fail-safe mechanism. While Wakeman s report was not disclosed to defendants
prior to plaintiffs ' opposition to defendants ' motions for summary judgment , this does not
prevent its consideration by this Court. (See Hemandez- Vega v Zwanger- Pesiri Radiology
39 AD3d 710. ) Since this case has been marked off the trial calendar , subject to
Group,
the filing of a new note of issue, plaintiffs ' disclosure of this expert at this juncture does not
prejudice defendants.
Considering the reports of both of plaintiffs ' experts as a whole , plaintiffs have raised
sufficient issues of fact to allow this case to go to a jury on the causes of action for strict
products liability, breach of implied warranties and negligence as against Sub-Zero and
Invensys , and on failure to warn as to defendant Sub-Zero.
Date
/cJ
EDWARD
l1Tf.
w.
ENTERED
JAN " 5
2DOa
NASSAu ",UUNTY
COUNT CLERK'
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