Agnesini v. Skechers USA Retail, LLC

2025 NY Slip Op 01709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 2025
• Docket: Index No. 152772/20; Appeal No. 3947; Case No. 2024-03147
• Status: Published

Opinion

Agnesini v Skechers USA Retail, LLC (2025 NY Slip Op 01709)

Agnesini v Skechers USA Retail, LLC

2025 NY Slip Op 01709

Decided on March 20, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 20, 2025
Before: Manzanet-Daniels, J.P., Kern, Kapnick, González, Scarpulla, JJ.

Index No. 152772/20|Appeal No. 3947|Case No. 2024-03147|

[*1]Teresa Agnesini, Plaintiff-Appellant,

v

Skechers USA Retail, LLC, et al., Defendants-Respondents.

Edelstein & Grossman, New York (Jonathan I. Edelstein of counsel), for appellant.

Gordon Rees Scully Mansukhani, LLP, Harrison (Julia E. Braun of counsel), for respondents,

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered on or about April 11, 2024, which granted defendants Skechers USA Retail, LLC and Skechers USA, Inc.'s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly granted defendants' motion for summary judgment because plaintiff, who has not tested positive for any bloodborne diseases, failed to present evidence sufficient to raise a factual issue as to whether the sharp object contained inside of a Skechers' shoe was contaminated with a virus (see Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6 [2008]; Bishop v Mount Sinai Med. Ctr., 247 AD2d 329, 331 [1st Dept 1998]). We have previously declined to take a view that the probable presence of a virus may be sufficient to support recovery for emotional trauma (see Bishop, 247 AD3d at 332). Even if the probable exposure standard were to apply, the evidence does not support a finding that plaintiff met it, as she cannot demonstrate a logical probability that she was exposed to a pathogen (see Montalbano v Tri-Mac Enters. of Port Jefferson, Inc., 236 AD2d 374, 375 [2d Dept 1997]).

We have considered the remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 20, 2025