Smith v. Johnson Products Co.

95 A.D.2d 675, 463 N.Y.S.2d 464, 1983 N.Y. App. Div. LEXIS 18575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1983
• Status: Published

Opinions

— Order, Supreme Court, New York County (Arthur Blyn, J.), entered February 19, 1982, inter alla, denying the motion by defendant Wolkow & Sons for summary judgment dismissing the complaint, reversed, to the extent appealed from, on the law, with costs, the motion granted and the complaint dismissed as against Wolkow. The action was brought to recover for personal injuries, sustained on October 16, 1973, when plaintiff’s hair ignited while using a hair-straightening comb in conjunction with a hair conditioner, both purchased at defendant Kaner’s Pharmacy, Inc. Defendant Johnson Products Co. allegedly manufactured the hair conditioner known as “Ultra Sheen Hair Conditioner & Hair Dress.” The complaint alleges that the hot comb was manufactured by Wolkow. In the third-party action, commenced by defendant Johnson, as third-party plaintiff, it is asserted that the hair-straightening comb used by plaintiff was manufactured by Lawndale Products, Inc., the third-party defendant. After an examination before trial of Wolkow held in July, 1977, at which the hot comb was inspected, appellant Wolkow moved for summary judgment dismissing the complaint, placing principal reliance upon the affidavit of its president to the effect that Wolkow was not the manufacturer of the comb. The denial of the motion (Klein, J.) was affirmed by us on January 31, 1980 (73 AD2d 906), without prejudice to renewal after discovery had been had as to the third-party defendant Lawndale Products who, at the time, had not as yet interposed an answer to the third-party complaint. On November 23, 1981, Wolkow renewed its motion, once again relying upon the testimony of its president that it was not the manufacturer of the comb. Special Term denied the motion, concluding that, inasmuch as no deposition of Lawndale had been held, the motion was premature. We disagree. Special Term overlooked the fact that almost two years had elapsed since the prior appeal, without any disclosure proceedings by plaintiff or any other party as to Lawndale. The record reflects that there were 10 adjournments of the Lawndale deposition subsequent to the prior appeal, extending from February 6,1980 to October 9, 1981, in addition to three prior adjournments. While the record does not demonstrate which party sought each adjournment, we find plaintiff had ample opportunity to pursue some affirmative course of disclosure over the two-year period to ascertain whether the claimed defective product was manufactured by Wolkow or by Lawndale. (Cf. Guarino v Mohawk Container Co., 59 NY2d 753.) In support of the motion for summary judgment, Wolkow relied upon the testimony of its president that it did not manufacture the comb alleged to have caused plaintiff’s injuries, detailing specific differences between that comb and those manufactured by Wolkow. Such proof was at least prima facie sufficient to support the application for summary judgment (cf. Weinberg v Johns-Manville Prods. Corp., 67 AD2d 640). In opposing the motion, plaintiff offered no evidence to establish that the comb had been manufactured by appellant. Thus, after an inordinate period, there was a failure of proof on plaintiff’s part in opposing the motion for summary judgment. A party appearing in opposition to a motion for summary judgment must lay bare his proof and present evidentiary facts sufficient to raise a genuine triable issue of fact (Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1067; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285). Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture or speculation. The affirmation of counsel, without knowledge of the facts, has no probative value on such a motion (Roche v Hearst Corp., 53 NY2d 767). The dissent hinges its position, in part, upon the fact that Wolkow’s evidence now is the same as in 1978 before Justice Klein. This overlooks the fact that proof of a negative fact, i.e., that Wolkow did not manufacture this product, can only be established by a denial. How else can one prove that the allegedly defective product was not made by it? As far as appears, there are no records or other proof available. However, we do have a further element supporting this, namely, the deposition of Wolkow’s president that this comb was not of the kind manufactured by Wolkow but by Lawndale. In view of the failure by plaintiff to pursue available disclosure over the past two years and more, we fail to perceive any justifiable basis to compel Wolkow to remain as a party defendant, particularly in light of the uncontroverted evidence that it did not manufacture the product alleged to have been responsible for the injury sustained by plaintiff. Concur — Murphy, P. J., Ross, Milonas and Kassal, JJ.