This motion and cross motion, pursuant to CPLR 3212, by defendant Well Done, Ltd. (Well Done) and defendant Wasserman's Supermarket, Inc. (Wasserman's), respectively for summary judgment dismissing the amended complaint as to said defendants are granted and the complaint is hereby dismissed.

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The plaintiff allegedly sustained second degree chemical burns to her right forearm and hand on February 13, 2003 while attempting to open a bottle of Well Done St. Moritz Oil and Grease Remover-Cold Action. According to the amended complaint, the "subject bottle of * * * oven cleaner * * * was caused to and did malfunction and leak while the plaintiff was * * * properly handling it in the performance of her ordinary household duties." The product, which was allegedly purchased by the injured plaintiff at a supermarket operated by defendant Wasserman's Supermarket, Inc., located on Main Street, Flushing, New York, was manufactured in Israel and imported to the United States by defendant Well Done which is itself based in Israel.

The plaintiff alleges that her initial attempt to disengage the "safety latch" on the container while wearing rubber gloves were unsuccessful, so she removed the gloves, in order to get a better grip on the container's spray nozzle and safety latch. As she attempted to adjust the nozzle to the "on" or "spray" position the contents of the bottle allegedly inadvertently released onto plaintiff's inner right forearm. The product spilled onto plaintiff's arm a second time shortly thereafter as plaintiff attempted to make sure the nozzle and cap were securely in place before putting the container back in the cabinet under the sink where it had been stored. The bottle fell over and the contents spilled out onto plaintiff's arm.

The crux of the complaint, which asserts cause of action sounding in defective manufacture; breach of warranty and strict products liability, is that defendant Well Done negligently manufactured the spray bottle and its contents of oven cleaner, failed to warn that the product was hazardous and toxic and that there was a risk of spontaneous spraying, leakage and content spillage resulting from the defective seal and sprayer nozzle system on the product and that defendant Wasserman's negligently and carelessly sold a dangerous and defective product to plaintiff.

The defendant Well Done seeks summary judgment dismissing the complaint predicated on the three pronged contention that 1) a claim based on a manufacturing defect cannot be maintained where, as here, the product itself has been lost or destroyed; 2) plaintiff has failed to show any manner in which any defective warnings contributed to her injury; and 3) the record is devoid of any evidence that the oven cleaner was inherently defective or unnecessarily dangerous. Defendant Wasserman's joins in the arguments advanced by defendant Well Done and further maintains that plaintiff cannot establish, with reasonable probability, that the oven cleaner she alleges caused her injury, was in fact, purchased at defendant supermarket. In this regard, defendant Wasserman's

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notes that plaintiff was unable to produce a receipt evidencing purchase of the product from said defendant and testified at her deposition that, on occasion, she also purchased the product at a store called National Liquidators.

With respect to the spoliation issue, it appears from both plaintiff's affidavit and the Winthrop University Hospital Emergency Department Adult Triage Assessment Sheet Emergency Department that plaintiff brought the container or bottle of oven cleaner with her when she presented at the emergency room at Winthrop Hospital for treatment of the burns on her forearm and hand the day after the accident. According to plaintiff, she did not intentionally destroy or negligently lose the actual bottle of Well Done oven cleaner. Rather, the hospital did not return the product to her but informed her that it would be disposed of properly.

In strict products liability, a manufacturer, wholesaler, distributor, or retailer who sells a product in defective condition is liable for injury which results from use of the product regardless of privity, foreseeability, or the exercise of due care. (Gebo v Black Clawson Co., 92 NY2d 387, 392, 1998). Depending upon the factual circumstances, an injured party may bring a cause of action under the theories of strict products liability, negligence or breach of warranty. (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106, 1983). The crux of a strict liability manufacturing defect claim is the product's failure to perform as expected due to an error in the manufacturing process that resulted in a defect. Whether pleaded in strict products liability, negligence or breach of warranty, the plaintiff must prove that the product was defective as a result of either a manufacturing flaw, improper design, or a failure to provide adequate warnings regarding use of the product (Sprung v MTR Ravensburg, Inc., 99 NY2d 468, 472, 2003; Sukljian v Charles Ross & Son Co., Inc., 69 NY2d 89, 94-95, 1986), and that the defect was a substantial factor in bringing about the injury. (Codling v Paglia, 32 NY2d 330, 332, 1973). Proof of liability may be established by direct or circumstantial evidence. Id, at p. 345. In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product's failure that are not attributable to defendants. (Speller v Sears, Roebuck & Co., 100 NY2d 38, 41, 2003).

Distributors and retailers may be held strictly liable to injured parties, even though they may be innocent conduits in the sale of the product, because liability rests not upon traditional considerations of fault and active negligence but upon policy considerations [*2]which dictate that those in the best position to exert pressure for improved product safety bear the risk of loss resulting from use of the product. (Bielicki v T.J. Bentey, Inc., 248

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AD2d 657, 659-660, 2nd Dept. 1998). A product is defective if it is not reasonably safe i.e., it is so likely to be harmful that a reasonable person who had actual knowledge of its potential for producing injury would conclude that it should not have been marketed in that condition, (Voss v Black & Decker Mfg. Co., supra at p.108).

In order to establish a prima facie case of strict products liability predicated on a manufacturing defect, a plaintiff must prove that the product did not perform as intended and that the product was defective when it left the manufacturer' s control. In a case based upon circumstantial evidence such as this, it may be inferred that the product was defective when it left the manufacturer's control only if plaintiff excludes all causes of the accident not attributable to the manufacturer. (Henry v General Motors Corp., 201 AD2d 949, 4th Dept. 1994, leave denied 84 NY2d 803, 1994). The inadequacy of a warning may form the basis of a strict products liability cause of action. A manufacturer has the duty to warn against latent dangers resulting from foreseeable uses of its product of which it knows or should know. (Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297, 1992). A manufacturer also has a duty to warn of the unintended uses of a product provided such uses are reasonably foreseeable. (Liriano v Hobart Corp., 92 NY2d 232, 237, 1998). In order to satisfy the causation element of a failure to warn claim, however, plaintiff must show that if adequate warnings had been provided, the product would not have been misused. Accordingly, a failure to warn claim must properly be dismissed where, as here, the plaintiff fails to make a showing of causation. (Banks v Makita, U.S.A., 226 AD2d 659, 660, 2nd Dept. 1996, lv to app den. 89 NY2d 805 1996).

It is well settled that when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party the ability to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading even if the evidence was destroyed before the spoliator became a party, provided it was on notice that the evidence might be needed for future litigation. (Lindquist v Pillsbury Co., 1 AD3d 410, 2nd Dept. 2003; Baglio v St. John's Queens Hospital, 303 AD2d 341, 342, 2nd Dept. 2003). Under the facts of this case, the loss of the bottle of oven cleaner at issue herein renders defendants bereft of appropriate means to confront plaintiff's claim with incisive evidence. (New York Central Mutual Fire Insurance Company v Turnerson's Electric Inc., 280 AD2d 652, 653, 2nd Dept. 2001). [*3]

Defendants Well Done and Wasserman's are entitled to summary judgment dismissing the amended complaint. Whether the action is pleaded in strict products

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liability, breach of warranty or negligence it is the consumer's burden to show that a defect in the product was a substantial factor in causing the injury. (Clarke v Helen Curtis, Inc., 293 AD2d 701, 2nd Dept. 2002). Plaintiff has failed to sustain this burden.

Here, not only has plaintiff failed to substantiate her claim of a manufacturing defect but the alleged defect in the product was not the proximate cause of plaintiff's injuries. Plaintiff testified at her deposition that she knew the product was dangerous, harsh and caustic. Although she initially heeded the bottle's warning by putting on protective gloves, she removed the gloves when she encountered difficulty in opening the cap. Plaintiff further testified that she deferred seeking medical treatment until the day after the incident although the warning on the label, which she admits she read, advised the user to seek medical attention in the event the bottle's contents came into contact with skin.

The affidavit of plaintiff's expert, whose identity was not revealed in pretrial disclosure, but was elicited solely to oppose defendants' motions for summary judgment after the note of issue and certificate of readiness were filed (Gralnik v Brighton Beach Associates, LLC, 3 AD3d 518, 2nd Dept. 2004), is unavailing in the face of plaintiff's admission that she knew and understood the hazards of using the product and failed to follow product instructions. Under the circumstances extant, an alleged missing or defective warning cannot be considered a substantial factor in causing plaintiff's injuries as she admittedly read the warnings but failed to heed them. (see, Liriano v Hobart Corp., supra at p. 241).

The plaintiff's expert's opinion that the cap on the Well Done bottle could have loosened if it had not been properly tightened during the manufacturing process, and that the first contact with plaintiff's skin was due to over pressurization of the spray nozzle, is purely speculative, lacking in probative value and insufficient to defeat defendants' motions for summary judgment. In short, the affidavit fails to raise an issue as to the existence of a defect or whether the defect was the proximate cause of plaintiff's injuries. (Houlihan v Morrison Knudsen Corp., 2 AD3d 493, 494, 2nd Dept. 2003). The plaintiff has failed to demonstrate that the Well Done oven cleaner at issue herein was defective or that anything in its manufacture or packaging was the proximate cause of the [*4]occurrence of the accident. The superseding cause of the accident was plaintiff's failure to heed the product warning i.e., to wear gloves and seek medical attention when the product spilled onto her skin.

With respect to defendant Wasserman's, there is nothing in the record to indicate

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that the store breached any duty owed to plaintiff sufficient to sustain a claim against it. The mere sale of the product to plaintiff does not constitute a proximate cause of his injuries. Moreover, plaintiff's own deposition testimony establishes that she purchased Well Done oven cleaner months before the accident, sometimes two bottles at a time, from both defendant Wasserman's and from National Liquidators. The bottles were stored in a cabinet under the kitchen sink. There is no way of knowing, based on the record, where the oven cleaner at issue herein was, in fact, purchased.

Because none of the claims asserted against defendants Well Done and Wasserman's survive scrutiny, their respective motion and cross motion for summary judgment dismissing the amended complaint pursuant to CPLR 3212 are granted and the amended complaint is hereby dismissed as to said defendants. The action is severed and continued against the remaining defendants.

Dated J.S.C.