[*1]
Pellon v Colgate-Palmolive Co.
2013 NY Slip Op 50161(U) [38 Misc 3d 1220]
Decided on February 4, 2013
Supreme Court, Richmond County
Maltese, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 4, 2013
Supreme Court, Richmond County


Margaret Pellon, Plaintiff,

against

Colgate-Palmolive Company, MD USA TRADING, INC., DOLLAR WORTH INC., and FOREST DISCOUNT INC., Defendants.




100444/10



Plaintiff's attorney is represented by the law firm of Kuharski Levitz & Giovinazzo. Defendant Colgate-Palmolive is represented by the law firm of Ahmuty Demers & McManus. Defendant Dollar Worth, Inc. is represented by the Law Office of Charles J. Siegel.

Joseph J. Maltese, J.



The following items were considered in the review of the following motion for summary judgment.

PapersNumbered

Notice of Motion and Affidavits Annexed1

Memorandum of Law in Support2

Plaintiff's Affirmation in Opposition3

Co-Defendant's Affirmation in Opposition4

Reply Affirmation5

ExhibitsAttached to Papers

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

The defendant, Colgate-Palmolive Company ("Colgate"), moves for summary judgment dismissing the plaintiff's complaint. The motion is granted.

Facts

This is a product liability action to recover for injuries that the plaintiff allegedly sustained as a result of ingesting tainted toothpaste. On or about May 16, 2007 the plaintiff purchased toothpaste from a store operated by the defendant, Dollar Worth, Inc. ("Dollar Worth"). The plaintiff testified that the toothpaste she purchased came in Colgate packaging, but she had thrown out the box. She did however keep the tube and the remaining contents. [*2]

Testimony taken at the plaintiff's deposition shows that she became very ill after ingesting the toothpaste purchased at the Dollar Worth store. She was admitted to the hospital as a result of this illness, and alleges that she sustained the following injuries as a result of ingesting the tainted toothpaste: colitis involving the descending colon; diverticulosis; esophagitis; gastro intestinal injuries; and gastroenteritis.

Brenden Dean, a manager at the Dollar Worth, stated that the store sold closeout goods. Mr. Dean acknowledged that the Colgate toothpaste that the store sold did not come directly from Colgate, but rather it came from a "middleman." Furthermore, Mr. Dean testified that the store did not employ any quality control procedures to confirm that the toothpaste was legitimate Colgate toothpaste.

Walter Drabik, a technical associate in the oral care packaging group, testified for the defendant Colgate. During his testimony Mr. Drabik concluded that the toothpaste in question was counterfeit. To arrive at this conclusion Mr. Drabik pointed out that the thread profile on the nozzle of the tube did not match Colgate's standards. Additionally, the opening where the toothpaste comes out was of a different diameter, and that the Colgate double hinge cap was not on the product. Furthermore, the font used on the tube for the phrase "great regular flavor" was a different font from that used by Colgate; and that the font varied from letter to letter.

In addition to examining the toothpaste tube, Mr. Drabik submitted the contents of the toothpaste tube to Colgate's laboratory. The testing laboratory demonstrated that the toothpaste contained .56% diethylene glycol ("DEG"), which is hazardous and should not be present in toothpaste.

Colgate moved for summary judgment dismissing the plaintiff's complaint against it because it did not manufacture the toothpaste in at issue in this litigation.

Discussion

A motion for summary judgment must be denied if there are "facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Granting summary judgment is only appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. "Moreover, the parties competing contentions must be viewed in a light most favorable to the party opposing the motion".[FN1] Summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable.[FN2] As is relevant, summary judgment is a drastic remedy that should be granted only if no triable issues of [*3]fact exist and the movant is entitled to judgment as a matter of law.[FN3] On a motion for summary judgment, the function of the court is issue finding, and not issue determination.[FN4] In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion.[FN5]

"[A] defendant who seeks summary judgment claiming that it did not manufacture the allegedly defective product has the initial burden of establishing that, as a matter of law, it did not manufacture the product in question; the plaintiff must then rebut this showing with affirmative evidence sufficient to create a reasonable inference that the defendant's product caused the injury."[FN6] Here, the plaintiff submitted adequate testimony demonstrating that Colgate did not manufacture the toothpaste at issue in this action. Therefore, it is incumbent on the plaintiff to come forward with evidence to rebut that showing. The plaintiff has failed to demonstrate any of their claims against Colgate-Palmolive for negligent packaging, distribution and sale, or in failing to safeguard and protect their toothpaste from tampering.

Plaintiff also failed to demonstrate any design defect or manufacturing defect, as well as any breach of the implied warranties of fitness for use and merchantability. Plaintiffs did not demonstrate that Colgate-Palmolive failed to warn or notify the plaintiff or any foreseeable user of the dangers and risks of using their toothpaste product. Colgate-Palmolive is not responsible for counterfeit products sold in the marketplace that violate their trade name and trademarks, which was evident here. Accordingly, the case against Colgate-Palmolive is dismissed. The case against the distributor and seller will proceed to trial.

Accordingly, it is hereby:

ORDERED, that the motion for summary judgment made by the defendant, Colgate-Palmolive Company is granted and the complaint is dismissed as to it; and it is further

ORDERED, that the Clerk shall enter judgment accordingly; and it is further

ORDERED, that the complaint is severed as to defendant, Colgate-Palmolive Company and the remainder of the action shall continue; and it is further

ORDERED, that the remaining parties shall return to DCM Part 3, 130 Stuyvesant Place, [*4]3rd Floor, on Monday, February 25, 2013 at 9:30 a.m.

ENTER,

DATED: February 4, 2013

Joseph J. Maltese

Justice of the Supreme Court

Footnotes


Footnote 1: Marine Midland Bank, N.A., v. Dino, et al., 168 AD2d 610 [2d Dept 1990].

Footnote 2: American Home Assurance Co., v. Amerford International Corp., 200 AD2d 472 [1st Dept 1994].

Footnote 3: Rotuba Extruders v. Ceppos,, 46 NY2d 223 [1978]; Herrin v. Airborne Freight Corp., 301 AD2d 500 [2d Dept 2003].

Footnote 4: Weiner v. Ga-Ro Die Cutting, 104 AD2d 331 [2d Dept 1984]. Aff'd 65 NY2d 732 [1985].

Footnote 5: Glennon v. Mayo, 148 AD2d 580 [2d Dept 1989].

Footnote 6: Baum v. Eco-Tec, Inc., 5 AD3d 842 [3rd Dep't. 2004].