In this personal injury action, defendant/third-party plaintiff Kirby & Allen, Inc. (Kirby & Allen) moves for an order, pursuant to CPLR 3212, granting summary judgment on all claims for personal injuries by the plaintiff Emilia Olivier and a loss of consortium claim by her husband Julio Olivier, and all cross claims by co-defendants Domenicano Department Store, Inc. d/b/a El Mundo (El Mundo). Defendants El Mundo and H. Schultz & Son cross-move and join in Kirby & Allen's motion for summary judgment as to dismissal of the action. In addition, El [*2]Mundo cross-moves, pursuant to CPLR 3212, for an order granting indemnification from co-defendants Kirby & Allen and H. Schultz & Son. H. Schultz & Son joins in El Mundo's cross motion, pursuant to CPLR 3212, for an order granting indemnification from Kirby & Allen.

For the reasons stated below, the motion for summary judgment is denied and the cross motions as to indemnification are conditionally granted.

The pressure cooker was manufactured in India by third-party defendant Presco Appliances Pvt. Ltd. a/k/a Priya Overseas (Presco).^[FN1] Kirby & Allen purchased the pressure cooker from Presco. Kirby & Allen claims that it was not involved in the pressure cooker's design, specifications or instructions for the manufacture of the pressure cooker. However, the Kirby & Allen logo was placed on the pressure cookers, as well as on the instruction manual, prior to being shipped from India to Kirby & Allen in the United States. Kirby & Allen received the pressure cookers, which were each individually boxed, in master cartons.

Upon receipt of the pressure cookers from Presco, Kirby & Allen sold the pressure cookers to H. Schultz & Son, a distributor. H. Schultz & Son, in turn, distributed the cooker to a retail store, El Mundo. There is no dispute that H. Schultz & Son and El Mundo had no involvement in the manufacture or design of the pressure cooker, or that they in any way altered the pressure cooker after it was shipped.

The Pressure Cooker

Kirby & Allen's expert, Dr. Carl J. Abraham, explains how the pressure cooker and its locking mechanism works as follows: The main components of a pressure cooker are the pressure regulator, the vent pipe and the sealing ring, also known as a gasket. The pressure within the cooker is controlled by raising and lowering the heat applied to the bottom of the cooker by a stove's burner. Generally, the pressure cooker's lid will not rotate, release or open as long as the pressure within the cooker is greater than the atmospheric pressure. A vent pipe is located at the center of the pressure cooker lid. There is also a pressure regulator that sits on top of the vent pipe that allows the internal pressure to build up to a specified level and safely maintains the amount of pressure inside the cooker. Lifting the regulator on top of the vent piper allows pressurized air within the cooker to escape through the vent pipe, equalizing the internal and external air pressures.

The pressure cooker has what is known as a flanged locking lid. When the lid is in the closed position, the lid handle is aligned directly above the pot handle. Generally, when the pressure inside the cooker exceeds the exterior air pressure, the internal pressure applies a strong upward force on the lid. This upward force causes tabs on the underside of the lid to become pressed against the underside of the flanges located around the edge of the pot, locking the lid in place. When the internal and external pressures are equalized, the upward force on the lid [*3]ceases, allowing the lid to be rotated and easily opened. [Exh. H, Notice of Motion, Aff. of Dr. Carl J. Abraham].

Plaintiff's Alleged Injury as a Result of Using the Pressure Cooker

Plaintiff purchased the pressure cooker from El Mundo in either October or November 2003, and used it at least six times before the March 22, 2004 accident. According to plaintiff, on the date of her accident, she closed the lid with difficulty; however, she still used the pressure cooker (E. Olivier dep. at 83-84, 86-88). When the cooker whistled, she turned off the burner and let the pressure cooker sit for approximately five to seven minutes (id. at 92, 94). After the whistling stopped, she placed the pot in the sink and ran it under cold water for approximately three minutes (id. at 94 -98, 114). She then opened the valve on the cover twice to make sure there was no steam coming out of the pressure cooker (id. at 103-104). Plaintiff testified that when she started to open the cover, the cover exploded off of the pot and the contents fell on her, scalding her upper body (id. at 110-111, 113, 117).

Defendant Kirby & Allen's Expert

Defendant Kirby & Allen's expert witness, Dr. Carl J. Abraham, director of Scientific Advisory Service Ltd., tested the subject pressure cooker and a model that was the same as plaintiff's except that it was never used. [Exh. H, Notice of Motion, Aff. of Dr. Carl J. Abraham, at ¶ 14]. As part of his experiment, Dr. Abraham filled each cooker with equal amounts of water, then secured the lids of both cookers into position and placed them on the stove's burners. [id. at ¶12]. According to Dr. Abraham, when both cookers were still in their pressurized state, Dr. Abraham attempted to rotate or remove the lids, which were locked in the closed position and could not be moved. Dr. Abraham then placed both cookers in the sink and ran cold water over the lids, in a manner similar to plaintiff, lowering the operating temperature and internal pressure, until the internal and external pressures were equalized. According to Dr. Abraham, both lids could only be removed without any applied force after the pressures in each were equalized. [id. at ¶13].

Dr. Abraham found that both pressure cookers were free from any defects, fit for their ordinary purpose and safe for normal use. [id. at ¶14]. In addition, Dr. Abraham, in his affidavit, highlighted that the pressure cookers, as well as the instruction mannual, complied with the requirements of Underwriters Laboratories Standard for Pressure Cookers (UL 136), which had been tested by Underwriters Laboratories and found to have complied with those standards. In addition, the pressure cooker complied with the ASTM Standards F1484-05 and F1217-03. [id. at ¶16].

Plaintiff's Expert

Contrary to Dr. Abraham, plaintiff's expert, Dr. Jeffery Ketchman, director of Mechanical & Safety Engineering at InterCity Testing & Consulting Corporation, concluded after inspecting and testing the pressure cooker, that the pressure cooker was defective, the instructions were insufficient and that the pressure cooker exploded during his testing similar in the manner testified to by plaintiff. [Exh. 1, Plaintiff's Aff. in Opp., ¶¶4, 39a]. Specifically, Dr. Ketchman found that there were three physical defects of the lid-locking mechanism: (1) the spacing and size of the locking pads of the lid lips were improper; (2) the trailing tabs of the lid lips were not formed with sharp corners, but were rounded; and (3) the cam slots of the pot rim were defectively formed. [id. at ¶26].

In addition, Dr. Ketchman found that the instruction manual was deficient in that it failed [*4]to: (1) describe or illustrate the lid-locking feature in sufficient detail; (2) describe or illustrate the proper method for cleaning the steam vent holes; and (3) provide the instructions in Spanish.

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

"A party injured as a result of a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury" (Speller v Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]). "A product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product" (id., citing Liriano v Hobart Corp., 92 NY2d 232, 237 [1998]). Depending on the factual circumstances, an injured party may bring a cause of action under theories of strict products liability, negligence or breach of warranty (see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106 [1983]).

As proponents of the motion for summary judgment, defendants have the burden of establishing the absence of a defect in the design or manufacture of the pressure cooker, that the product was accompanied by adequate warnings/instructions, and that they did not breach any implied or express warranties.

Where, as here, products liability and negligence claims are premised on a product's defective design, it must be established that the marketed product in question was designed in such a way that it is not reasonably safe and that the alleged design defect was a substantial factor in causing the decedent's injuries (Voss, 59 NY2d at 107; McArdle v Navistar Intl. Corp., 293 AD2d 931, 934 [3rd Dept 2002]; Bombara v Rogers Bros. Corp., 289 AD2d 356 [2d Dept 2001]). "A cause of action for negligent design additionally requires proof that the manufacturer acted unreasonably in designing the product" (McArdle, 293 AD2d at 934 [citation omitted]). In design defect cases, the difference between prima facie cases in negligence and in strict liability is slight, and a finding of questions of fact with regard to one "inevitably raises material questions of fact" as to the other (Searle v Suburban Propane Div. of Quantum Chem. Corp., 263 AD2d 335, 337-338 [3rd Dept 2000]; see also Donovan v All-Weld Products Corp., 38 AD3d 227, 228 [1st Dept 2007] [causes of action for strict products liability and negligence are "virtually indistinguishable"]).

Kirby & Allen argues that plaintiff's testimony reflects that she used the pressure cooker in the correct manner and therefore that her injuries could not have occurred as result of the pressure cooker. Rather, Kirby & Allen speculates that plaintiff inadvertently spilled the contents on herself. However, there is absolutely no evidence to support defendant's mere supposition (Marietta v Scelzo, 29 AD3d 539 [2d Dept 2006]).

In any event, plaintiff's expert offers evidence to support plaintiff's version of events and directly contradicts defendant's expert. While Kirby & Allen submits Dr. Abraham's expert testimony claiming that the pressure cooker was not defectively designed, Dr. Ketchman contends that the design of the pressure cooker's lid-locking mechanism is defective in that, among other things, the size and shape of the edges of the lid-lips provide means to open the [*5]cooker when the pressure system has not yet been equalized. The conflicting testimony of experts creates a question of fact to be resolved by a trier of fact (Wojcik v Empire Forklift, Inc. 14 AD3d 63, 65 [3rd Dept 2004]; Sanchez v Otto Martin Maschinenbau GMBH & Co., 281 AD2d 284, 285 [1st Dept 2001]).

The Court of Appeals has held that liability under strict products liability and implied warranty theory are essentially the same, except that under the implied warranty theory, it is not necessary to show the feasibility of alternative designs or the manufacturer's "reasonableness" in marketing it in the unsafe condition (see Denny v Ford Motor Co., 87 NY2d 248, 258-259 [1995]). And, in most cases, as a practical matter, the distinction between the defect concepts in tort law and in implied warranty theory has little or no effect (id. at 262). As there exist questions of fact as to design defect under strict liability, there also exist similar issues of fact under the breach of warranty standard.

As to plaintiff's duty to warn claim, plaintiff argues that the pressure cooker manual is inadequate because it failed to illustrate the lid-locking feature of the pressure cooker, and that its description was insufficient. Kirby & Allen contends that the instructions were printed in compliance with industry standards and were therefore effective to warn plaintiff of the risks associated with using a pressure cooker.

The inquiry in a duty to warn case focuses principally on the foreseeability of the risk and the adequacy and effectiveness of any warning (see Liriano v Hobart Corp., 92 NY2d at 239). Liability may be premised upon the complete absence of warnings as to a particular hazard, or upon the inclusion of warnings which are insufficient, regardless of whether plaintiff has read them (see German v Morales, 24 AD3d 246, 247 [1st Dept 2005], citing Johnson v Johnson Chemical Co., 183 AD2d 64, 69 [2d Dept 1992]). Moreover, "[w]here liability is predicated on a failure to warn, New York views negligence and strict liability claims as equivalent" (Martin v Hacker, 83 NY2d 1, 8 n1 [1993]).

Based on the facts noted above, there are questions of fact as to whether Kirby & Allen provided adequate warning, and summary judgment is therefore precluded (Vincenty v Cincinnati Inc., 25 AD3d 463 [1st Dept 2006]).

However, there is no basis for plaintiff's claim for punitive damages, as there is no evidence in the record of willful or wanton conduct which demonstrates a " conscious disregard of the rights of others or conduct so reckless as to amount to such disregard'" (Dubecky v S2 Yachts, 234 AD2d 501, 502 [2d Dept 1996], quoting Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 203-204 [1990].

Accordingly, Kirby & Allen's motion for summary judgment seeking dismissal of the complaint is denied, except that summary judgment is granted striking plaintiff's for punitive damages. For the same reasons, the cross motion by defendants El Mundo and H. Schultz & Son seeking dismissal of the complaint is also denied.

Defendant El Mundo cross-moves for summary judgment asserting that El Mundo is entitled to common-law indemnification from co-defendants Kirby & Allen and H. Schultz & Son. H. Schultz & Son joins in El Mundo's cross motion seeking indemnification from Kirby & Allen.

Kirby & Allen opposes the cross motions, arguing that they were served after 60 days from the filing of the note of issue as required pursuant to the Preliminary Conference Order dated September 9, 2005, and were therefore untimely and should not be considered by the [*6]Court.

A cross motion for summary judgment made after the expiration of the timer period set by the Court for the filing of a dispositive motion may not be considered by the court, absent a showing good cause. (see Colon v City of New York, 15 AD3d 173 [1st Dept 2005]; Thompson v Leben Home For Adults, 39 AD3d 624 [2nd Dept 2005]).

While the court co-defendants' cross motions for indemnification are not timely as they were not served within 60 days of filing the note of issue as required, there has been a showing of good cause for the delay, specifically, that: (1) plaintiff never served an Expert Witness disclosure; (2) the note of issue was served on El Mundo's counsel's prior address, which was subsequently forwarded to and received by El Mundo ^[FN2]; and (3) the summary judgment motion was also sent to the incorrect address, El Mundo receiving the motion papers 13 days from the date of the summary judgment motion.

Moreover, regardless of the fact that Kirby & Allen does not contest the merits of El Mundo and H. Schultz & Son's indemnification claim, the court finds conditional summary judgment is warranted to indemnify El Mundo and H. Schultz & Son.

It is well settled that "[d]istributors of defective products, as well as retailers and manufacturers, are subject to potential strict products liability" (Giuffrida v Panasonic Indus. Co., 200 AD2d 713, 715 [2d Dept 1994]). "[A] party/distributor lower in the chain of distribution is entitled to common-law indemnification from the one highest in the chain of distribution, due to the latter's closer, continuing relationship with the manufacturer and superior position to exert pressure to improve the safety of the product" (Lowe v Dollar Tree Stores, Inc., 40 AD3d 264 [1st

Dept 2007], citing Godoy v Abamaster of Miami, 302 AD2d 57 [2d Dept 2003] [other citations omitted]). Such policy shifts risk of loss to the party who can most efficiently control risk and distribute the attendant costs (Lowe, 40 AD3d at 264). As in Lowe, there is no evidence in the record as to any modification of the pressure cooker by retailer El Mundo (40 AD3d 264, supra). Likewise, as in Godoy, there is no evidence as to any modification of the pressure cooker by distributor H. Schultz & Son (302 AD2d 57, supra). As such, El Mundo and H. Schultz & Son are entitled to indemnification.

The right to indemnification at issue includes the right to recover attorneys' fees, as well as costs and disbursements for defending against plaintiff's action (Lowe, 40 AD3d at 264, citing Chapel v Mitchell, 84 NY2d 345 [1994]; see also Yacovacci v Shoprite Supermarket, Inc., 24 AD3d 539, 541 [2d Dept 2005]). "[C]onditional summary judgment is appropriate here, notwithstanding the fact that a judgment has yet to be rendered or paid by [Kirby & Allen] . . ., since it serves the interest of justice and judicial economy in affording the indemnitee the earliest possible determination as to the extent to which he may expect to be reimbursed'" (Lowe, 40 AD3d at 264, quoting McCabe v Queensboro Farm Prods., 22 NY2d 204 [1968]; see also Ortiz v Fifth Ave. Bldg. Assocs., 251 AD.2d 200 [1st Dept 1998]).

Accordingly, the cross motions by defendants El Mundo and H. Schultz & Son are granted as to indemnification. [*7]

It is ORDERED that the motion by defendant Kirby & Allen, Inc. for summary judgment is granted to the extent that the demand in the complaint by plaintiffs for punitive damages is stricken, and the motion otherwise denied; and it further

ORDERED that the cross motions by defendants Domenicano Department Store, Inc. d/b/a El Mundo and H. Schultz & Son for indemnification over as against defendant Kirby & Allen, Inc. are conditionally granted to the extent specified herein, and the cross motions are otherwise denied; and it is further

ORDERED that within 30 days of entry of this order, plaintiffs shall serve a copy upon all parties with notice of entry.

ORDERED that the remainder of the action shall continue.

Dated: October 15, 2007

______________________

Hon. Doris Ling-Cohan, J.S.C. C:\htformat\f5207670.txt