Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered October 4, 2006. The order, insofar as appealed from, denied a motion by defendants John J. Schmittau and Mary Jane Schmittau for summary judgment dismissing the complaint as against them.

Order, insofar as appealed from, reversed without costs and motion by John J. Schmittau and Mary Jane Schmittau seeking summary judgment dismissing the complaint as against them granted.

Plaintiff brought this action against a washing machine manufacturer, distributors and seller, as well as against her parents, defendants-appellants John J. Schmittau and Mary Jane [*2]Schmittau, for injuries she sustained while using her parents' washing machine, equipped with a lid-locking mechanism. Insofar as is relevant to this appeal, plaintiff asserted claims of negligence and strict products liability against her parents. Plaintiff alleged that she was able to open the washing machine while it was in operation, and that her hand was pulled into the machine when she added clothes to the wash, causing her injuries.

The Schmittaus moved for summary judgment dismissing the complaint or, in the alternative, for summary judgment against Richmond Discount Appliance Sales Corp. (Richmond Discount), White Consolidated Industries (White) and Frigidaire Home Products (Frigidaire) for common-law indemnification. In support of the motion, the Schmittaus submitted their own unsigned deposition transcripts as well as those of Richmond Discount, White and Frigidaire, all of which were certified as accurate by the reporter.

The court below denied the motion in its entirety on the ground that the unsigned deposition transcripts were inadmissible absent a showing that the transcripts were sent to the witnesses for review in accordance with CPLR 3116 (a). The court further found that triable issues of fact exist as to whether the Schmittaus acted reasonably in failing to warn plaintiff of the condition of the machine, namely, that it would continue to operate after lifting the lid, or in failing to report the condition to Richmond Discount, White and Frigidaire.

Upon the circumstances presented, the court below erred in denying the motion for summary judgment on the ground that the deposition transcripts were unsigned.
Whether or not these transcripts would qualify as depositions under CPLR 3116, the transcripts contained written admissions which may be submitted on a summary judgment motion (see R.M. Newell Co. v Rice, 236 AD2d 843, 844 [1997]; see generally Scudera v Mahbubur, 299 AD2d 535 [2002]; Matter of Mishook v Mishook, 78 AD2d 570 [1980]).

The branch of the motion seeking summary judgment dismissing the cause of action for negligence against the Schmittaus should have been granted. The Schmittaus had no duty to warn plaintiff of an open and obvious danger of which she should have been aware as the result of ordinary observation or as a matter of common sense (see O'Boy v Motor Coach Indus., Inc., 39 AD3d 512 [2007]). The branch of the motion for summary judgment seeking dismissal of the cause of action for strict products liability should similarly have been granted as the Schmittaus are outside the
manufacturing, distribution and selling chain (see Spallholts v Hampton C.F. Corp., 294 AD2d 424 [2002]; Joseph v Yenkin Majestic Paint Corp., 261 AD2d 512 [1999]).
In view of the foregoing determination, we pass upon no other issue. Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: January 16, 2008