Yates v. Dow Chemical Co.

In an action to recover damages for wrongful death and personal injuries, etc., predicated, inter alia, upon a theory of strict products liability, defendant Dow Chemical Company appeals from an order of the Supreme Court, Kings County, dated September 11, 1978, which denied its motion for summary judgment dismissing the cross claim of defendant Chrysler Corporation. Order affirmed, with $50 908 costs and disbursements. The complaint alleges that on August 15, 1975, the infant plaintiff, Cheryl Latimore, and the decedent, Phyllis Yates, were passengers in a Plymouth automobile which was being driven on a public street in Brooklyn when a portion of the vehicle became disengaged and punctured the gas tank, causing a fire. This action was brought against appellant, Dow Chemical Company (Dow), and respondent, Chrysler Corporation (Chrysler), the complaint alleging, inter alia, that Chrysler manufactured and distributed the automobile in a "dangerous and defective manner” and that Dow manufactured and caused "the interior of the car to contain flammable materials, poly-plastics that gave off dense and toxic smoke and causing the severe injuries and asphyxiation”. The complaint was served in January, 1977 and in March of that year Chrysler served its answer in which it cross-claimed against Dow for indemnification or contribution. In' May, 1978 the plaintiffs moved, inter alia, to delete Dow as a party defendant on the ground that the causes of action against Dow had been "severed and discontinued”. In a supporting affirmation, Dow’s attorney stated that on February 13, 1978 the plaintiffs executed a stipulation discontinuing the action as to Dow because the plaintiffs realized "after investigation and conferences” that Dow was not a proper defendant in the action. It was noted, however, that Chrysler has refused to sign the stipulation. Dow’s attorney further informed Special Term that Dow was preparing to move for summary judgment dismissing Chrysler’s cross claim against Dow, and requested that both motions be resolved together. In June, 1978 Dow moved for summary judgment dismissing the cross claim against it. In the moving papers, Dow’s attorney stated that after investigation, "it was determined that none of the materials allegedly in the automobile were manufactured by now. When this was demonstrated to the plaintiffs’ counsel they signed a stipulation of discontinuing action against now * * * Despite repeated requests Chrysler has refused to discontinue the cross claim at this time.” In his supporting affidavit, Dow’s claims manager stated that his review of Dow’s records reveals the sale of certain named products which might have been incorporated into a 1972 Chrysler automobile and that none of the products purchased by Chrysler from Dow "could reasonably be described as a poly-plastic”, or "would exist or be used in”, or "would affect the flammability of the interior of an automobile.” The only opposing paper is an affirmation by Chrysler’s attorney dated June 30, 1978. He stated that approximately 45 days earlier Dow’s counsel advised him that the plaintiffs had discontinued the action against Dow and requested a discontinuance of Chrysler’s cross claim; that in the one and one-half years which have elapsed since the complaint was served "virtually no discovery has taken place. Plaintiff [sic] has not as yet answered interrogatories and no depositions have been held”; that until Chrysler was advised of the plaintiffs’ discontinuance of the action against Dow, no investigation as to Dow’s involvement was conducted; and that Chrysler was relying upon the plaintiffs for proof against Dow since the plaintiffs have asserted in their complaint a number of causes of action against Dow individually. He continued: "Quite frankly, the investigation required has not been submitted to my client to determine whether or not any portions of the interior of this automobile involved products manufactured by now and this determination may take some considerable period of time requiring full pre-trial discovery as well.” Chrysler’s counsel made the following offer: "If, however, counsel for plaintiff [sic] states by way of affidavit that no issue will be raised at the trial of this action concerning the flammability of any interior portions of the automobile then, and under those circumstances, your 909 affirmant would consent to a discontinuance of the cross-claim by Chrysler against Dow.” In the reply affirmation, Dow’s attorney stated, inter alia, that Chrysler has not responded to a notice to admit (CPLR 3123), which called upon Chrysler to admit that it has made no investigation, has no document and is aware of no fact which supports its cross claim against Dow or shows that Dow is responsible for the allegedly toxic, non-flame-retardant and non-self-extinguishing interior of the vehicle. Dow’s motion for summary judgment and the plaintiffs’ motion, inter alia, to delete Dow as a party defendant were heard on September 7, 1978. In an order dated September 11, 1978 Special Term denied summary judgment on the ground that there were issues of fact which required a trial. It is from this order that Dow appeals. Thereafter, on October 25, 1978, Special Term denied the application to delete Dow as a party defendant and vacated the plaintiffs’ stipulation of discontinuance against Dow. It appears that no appeal has been taken from the latter order. Special Term properly denied Dow’s motion for summary judgment on the cross claim. The statements by Dow’s claims manager in his affidavit that none of the products purchased by Chrysler from Dow would be used in the interior, or would affect the flammability, of an automobile are the expression of an opinion and are conclusory. The claims manager’s qualifications as an expert, if any, are not stated. Further, the affidavits do not eliminate the possibility that Chrysler may have purchased from another supplier either a Dow product or an item manufactured by someone other than Dow who incorporated a Dow product in the finished item. An injured person can assert a claim for redress against the manufacturer of an allegedly defective component part (Rivera v Berkeley Super Wash, 44 AD2d 316, p 321, n 4, affd 37 NY2d 395; Clark v Bendix Corp., 42 AD2d 727). Elimination of this possibility would require extensive discovery and there have been no discovery proceedings. On a motion for summary judgment, the moving party has the burden of setting forth evidentiary facts to establish his cause sufficiently to entitle him to judgment as a matter of law; anything less requires a denial of the motion, even where the opposing papers are insufficient (Hotaling v Smith, 63 AD2d 219, 222; Walski v Forma, 54 AD2d 776; Stelick v Gangl, 47 AD2d 789; Greenberg v Manlon Realty, 43 AD2d 968, 969). It is the plaintiffs who brought Dow into the action as a party defendant, alleging in their complaint that Dow manufactured certain materials used in the interior of the car which were flammable and gave off dense and toxic smoke, and the plaintiffs have not answered interrogatories served upon them. There is nothing in the record, apart from a self-serving statement by Dow’s attorney that "After investigation and conferences these plaintiffs realized that now was not a proper defendant in the action and they elected to discontinue the action as to now in order to avoid unnecessary cost and expense to themselves and dow”, to support the dissent’s statement that "plaintiffs have made it abundantly clear that they presently have no basis or even a theory of action against Dow.” The record contains no statement by the plaintiffs or their attorney. Chrysler’s attorney had no knowledge of the stipulation of discontinuance until several months after it was executed. The plaintiffs’ application to delete Dow as a party defendant has been denied; the minority concedes that the plaintiffs’ stipulation of discontinuance against Dow has been vacated "without explanation” and no appeal has been taken from that order. The plaintiffs’ attorney has refused to concede that no issue will be raised at the trial as to the flammability of any interior portions of the automobile, but Dow has not moved for summary judgment against the plaintiffs. As to Chrysler’s failure to respond to the notice to admit, any 910 admission deemed to be made may be amended or withdrawn "at any time” with the court’s permission (CPLR 3123, subd [b]). "The law is settled that the purpose of the notice to admit procedure is not to obtain information in lieu of other disclosure devices, but only to eliminate from the issues matters which will not really be in dispute at the trial” (Felice v St. Agnes Hosp., 65 AD2d 388, 395). Moreover, the notice calls upon Chrysler to admit whether it has any document or is aware of any fact which shows that Dow is responsible for the allegedly toxic and non-flame-retardant interior. This "was in fact a request for an admission to an ultimate or conclusory fact which can only be determined after a full and complete trial” (see Felice v St. Agnes Hosp., supra, p 396). Under the circumstances of this record, the denial of Dow’s motion for summary judgment on the cross claim was appropriate. Mollen, P. J., Gulotta and Martuscello, JJ., concur.