Defendants, Irish Welding Supply Corp. ("Irish Welding") and Irish Propane Corp. ("Irish Propane") (collectively, "Defendants"), have applied, pursuant to CPLR 3212, for summary judgement. Plaintiffs have cross-applied, pursuant to CPLR 3212, for partial summary judgment, as limited to liability.

Plaintiffs contend that on May 26, 2016, Plaintiff, Art Jayes, brought a 2.5 pound, round aluminum tank to Irish Welding to be re-filled with carbon dioxide gas ("CO2") (the "Tank") to be used with his personal kegorator. While driving home with the filled Tank, Plaintiffs contend that it "exploded," causing the vehicle to be filled with a complete release of the CO2, and that the gas blew up Mr. Jayes' shorts, resulting in, inter alia, frostbite burns to his groin area, recurring erythematous, macular rashes, erectile dysfunction, and impotence (the "Incident").

Mr. Jayes testified at his deposition that upon leaving Irish Welding with the filled Tank, he placed it on the front passenger floor of his vehicle atop a towel, and leaned it at an angle [*2]against the vehicle's middle console (Doc. 25, pp. 31-33). He described the position of the Tank as almost lying down on the vehicle's floor. He made no effort to otherwise stabilize the Tank during transport (Id., at pp. 44-46).

Mr. Jayes further testified that after stopping for, and proceeding through, approximately five (5) stop lights (Id.), he heard a faint "hiss" sound, which he ignored because it was "so faint" (Id., at p. 35). He then testified that the Tank "popped open and let loose" (Id.), such that the Tank's cap flew off and struck his arm (Id., at p. 36). Prior to the Incident, the vehicle's windows were closed. Immediately following it, Mr. Jayes opened the driver's side window and proceeded to a nearby fire hall (Id., at pp. 36-37).

According to Mr. Jayes, the Tank did not move during transport, or as the CO2 escaped from it (Id., at p. 45).

It is undisputed that the Tank had a valve with a black plastic hand wheel, manufactured by TWA (the "Valve").

Irish Welding is not (and has never been) in the business of manufacturing 2.5 pound tanks capable of holding CO2, similar to the Tank. It has never designed, manufactured, marketed or sold such 2.5 pound aluminum tanks or TWA valves. Rather, Irish Welding is (and has been) in the business of providing CO2 to customers who provide their own tanks (Doc. 36, ¶¶6-8).

It is undisputed that Mr. Jayes purchased the Tank online, from a non-party, and that prior to the Incident he had it filled with CO2 three (3) times, without complication (Doc. 25, pp. 10-12).

Irish Welding and Irish Propane are separate and distinct corporate entities, with separate Tax Identification numbers, which sell different products. Irish Propane only sells propane, and does not sell CO2, whereas Irish Welding is a CO2 supplier. The two entities are also located at different locations in the City of Buffalo, with Irish Welding located at 1444 Clinton Street, and Irish Propane located at 70 Catherine Street (Doc. 36, ¶3).

To obtain summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law (Ferluck AJ v. Goldman Sachs & Co., 12 NY3d 316, 320 [2009]). This requires sufficient evidence to shift the burden to the opposing party to produce evidentiary proof sufficient to establish the existence of genuine issues of material fact (Id at 320). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (Gilbert Frank Corp. v. Fed. Ins. Co., 70 NY2d 966, 967 [1988] [citation omitted]).

Irish Propane

Plaintiffs have not alleged that the Incident was caused by a release of propane. Rather, Plaintiffs allege that the Incident was caused by an unexpected release of CO2 purchased at Irish Welding. Irish Propane sells propane, but not CO2 (Doc. 36, ¶3). Accordingly, Irish Propane has sufficiently demonstrated that it was improperly named as a party herein, and its motion for summary judgment is granted.

The balance of this Decision and Order addresses Plaintiffs' claims against Irish Welding.

Irish Welding

Plaintiffs allege in their Amended Complaint that liability arises out of Irish Welding having "marketed, sold, and refilled" the Tank (Doc. 4, ¶6). However, it is undisputed that Irish Welding never marketed or sold any CO2 tanks, let alone the Tank. In addition, Mr. Jayes testified that he purchased the Tank from a non-party. Accordingly, Plaintiffs' contentions arising out of the marketing and sale of the Tank are unfounded.

With respect to refilling, Plaintiffs contend that Irish Welding caused the "explosion" by some or all of the following: overfilling the Tank; failing to secure the cap to the Valve; failing to properly close/seal the Valve after the Tank was filled; and/or damaging the Valve during the fill (Bill of Particulars; Doc. 23, ¶5).

Zachary J. Jason is Irish Welding's expert consultant. Mr. Jason has been a "practicing, consulting and forensic engineer since 2005" and he has "investigated accidents in various industries across the energy sector, including [, among others] natural gas and propane utilities" (Doc. 29, ¶2). As a result of his training (which he details in his affidavit), Mr. Jason is "well versed in various compressed gasses, including carbon dioxide (CO2), and the procedures for filling the associated cylinders" (Id., at ¶4).

The Tank and Valve were examined and inspected on February 6, 2020 (the "Inspection"). Mr. Jason and Plaintiffs' expert, Thomas R. Shellenbarger, P.E., were present at the Inspection, along with the parties' respective counsel.

In preparing to examine and inspect the Tank and Valve, Mr. Jason reviewed, inter alia, the Amended Complaint; Answer to Amended Complaint; Verified Bill of Particulars; deposition transcripts of Mr. Jayes and Laurie-Irish Jones; certain of Defendants' records; and photographs of the Tank and Mr. Jayes' injuries (Id., at ¶6).

According to Mr. Jason, the Tank is a DOT-3AL seamless aluminum cylinder, which was manufactured in China circa June 2014, with a manufacture number "M0306" and Serial Number "548061." It had a design capacity to hold, at full, 2.5 pounds of CO2. The Valve on the Tank is a CGA320D type valve, which was manufactured by TWA in China (Id., at ¶11).

Prior to the Inspection and any destructive testing, the Tank was photographed and weighed and then photographed and weighed again, after all CO2 had been evacuated, to determine the net product it contained. The Tank's initial weight (including the weight of the existing gas contained therein and the Valve) was 7.69 pounds. After the Tank had been evacuated of all product, it and the Valve weighed 5.24 pounds. Based upon these measurements, the Tank contained 2.45 pounds of net product and was almost completely full (Id., at ¶12).

In addition, the pressure within the Tank was measured prior to evacuation with a pressure gauge, which registered at approximately 850 pounds per square inch ("psi")." The existence of measurable pressure is another indication that the Tank had product within it and was not leaking (Id., at ¶13).

Based on the foregoing, Mr. Jason opined that (i) had the Tank experienced an explosion, such as alleged by Mr. Jayes, it would not have contained any product or held pressure; and (ii) based on both the aforementioned pressure and the weight measurements, the Tank and Valve were not leaking, notwithstanding that they had been under pressure for almost four (4) years [*3]since the Incident (Id., at ¶14).

During the evacuation procedure, Mr. Jason examined the Valve and noted that the hand wheel was properly imprinted with directional arrows, with an arrow pointing to the counterclockwise direction for "open." The Valve was cycled by manipulating the hand wheel into both the "open" and "closed" positions multiple times, and during each iteration, the Valve operated properly, releasing CO2 when "open" and stopping the flow of CO2 when in the "closed" position. No leaks or irregularities in operation were detected during the testing. Accordingly, Mr. Jason concluded upon his examination and testing of the Valve that it was leak free and operating properly, and there were no signs of any damage or malfunction (Id., at ¶15).

After the CO2 was evacuated from the Tank, the Valve was removed in order to inspect the bursting/rupture disc associated with the non-reclosing pressure relief device. Within the pressure relief assembly, a flat metal rupture disc is installed and designed to burst at a predetermined pressure. This safety device is designed to relieve over-pressure within the Tank which may occur from being overfilled or other unsafe conditions, such as exposure to fire or other external heat sources, so as to avoid the cylinder from suffering a catastrophic explosion. After the rupture disc bursts, the flat metal disc is permanently damaged, cannot be reused, and the product contained within the cylinder is completely discharged (Id., at ¶16).

The burst disc within the Valve was found intact and had not activated (see photographs 3-354, 2-358, 3-375, and 3-392 at Doc. 33). According to Mr. Jason, this evidence, along with the fact that the Tank was almost completely full of CO2, indicates that the Tank did not experience an over-pressure situation from overfilling or external heating. Had the rupture disc activated, the metal disc would have been found punctured and physically deformed, and the Tank would have been devoid of CO2 and rendered incapable of holding pressure (Id., at ¶17).

Upon completing the examination and testing of the Tank and Valve, Mr. Jason concluded that (i) the Valve was functioning properly without any leak or issue; (ii) the rupture disc was found intact; and (iii) the Tank was found under pressure, leak free, and containing the proper amount of CO2 almost four (4) years after the Incident. For these reasons, and based upon his testing and examination, and his knowledge of, and experience involving, compressed gasses, DOT cylinders, the associated cylinder valves, pressure relief devices, and the filling procedures, Mr. Jason opined, within a reasonable degree of scientific and engineering certainty, that the Tank was not overfilled, the Tank and Valve were leak free, were found operating properly, and the Tank did not explode as alleged by Mr. Jayes (Id., at ¶¶19-20).

Mr. Jason also concluded that the cap having not been secured to the Valve (assuming it was not secured) is not a basis for negligence or any theory of causation for the purported evacuation, because the plastic cap on the Valve is meant to protect the threads and keep debris or other material from getting into the Valve. It has no bearing on the pressure or functionality of the Tank and the Valve (Id., at ¶18). Mr. Jayes confirmed such understanding of that during his deposition when he testified that "[t]hose plastic caps don't mean anything. By taking the cap off doesn't mean it's going to explode. It's protection so nothing gets in there when you hook it up." (Doc. 25, pp. 52-53).

There is an adequate foundation for Mr. Jason's opinions and conclusions, which the Court fully credits.

[*4]It is well settled that where the defendant did not manufacture or sell the alleged defective product, a cause of action in strict tort liability does not exist as a matter of law (Goldstein v. Brogan Cadillac Oldsmobile Corp., 90 AD2d 512 [2d Dept 1982]). Accordingly, Plaintiffs' claim for strict products liability, as grounded upon the allegation that Irish Welding "marketed, maintained, [and] sold" the Tank fails, as a matter of law.

Moreover, Plaintiffs' claim for strict products liability, as grounded upon the allegation that Irish Welding "overfilled" the Tank also fails, because strict liability is not applicable to providers of services (Reeps v. BMW of North America, LLC, 941 AD3d 475 [1st Dept 2012]; see also, Sears, Roebuck & Co. v. Enco Assoc., 43 NY2d 389 [1977]).

Plaintiffs' Third Cause of Action (Breach of Warranties)

It is well settled that,

for an express warranty to exist, there must be an affirmation of fact or promise by the seller, the natural tendency of which is to induce the buyer to purchase. Thus, for a buyer to recover for breach of express warranty, he must show that the warranty was relied on (Friedman v. Medtronic, Inc., 42 AD2d 185, 190 [2d Dept 1973] (citations omitted); see also Horowitz v. Stryker Corp., 613 F Supp2d 271, 286 (EDNY. 2009) ("Under New York law, an action for breach of express warranty requires both the existence of an express promise or representation and reliance on that promise or representation"]).

Moreover, a breach of express warranty claim should be dismissed where a plaintiff "fail[s] to set forth the terms of the alleged warranty with sufficient particularity to give fair notice thereof" (Hicksville Dry Cleaners, Inc. v. Stanley Fastening Sys., L.P., 37 AD3d 218, 218 [1st Dept 2007]).

The Amended Complaint fails to state the material elements with sufficient particularity for a breach of express warranty cause of action. The bare-bones allegations are silent on the language and terms of the alleged express warranty, and fail to state how the express warranty was made. Nor have Plaintiffs pled any facts in support thereof (see Foley v. D'Agostino, 21 AD2d 60 [1st Dept 1964]; see also, CPLR 3013]).

Moreover, as a matter of law, claims for breach of both express and implied warranty may not arise out of the performance of a service (Sala v. Tomlinson, 73 Ad2d 724 [3d Dept 1979]).

Plaintiffs allege that Defendants failed to warn "that the valve could operate opposite to what was indicated on the label" and thereby "created a dangerous condition, to wit: a tank with either the winch controls or the label indicating the direction the valve operated were reversed." (Doc. 23, ¶5).

These allegations fail to state a cause of action against Irish Welding, because it did not manufacture the Tank and Valve (Rastelli v. Goodyear Tire & Rubber Co., 79 NY2d 289 [1992]).

In addition, there is no factual evidence to support Plaintiffs' allegation that the label on the valve was reversed (Doc. 23, ¶5[b])). Indeed, a photograph of the Valve taken during the inspection clearly shows that the word "OPEN" with an arrow pointing counterclockwise, was imprinted on top of the valve (Doc. 32, photo 3-150), and valves generally open when turned to the left, and close when turned to the right. Nothing about the label imprinted on the Valve [*5](which was manufactured by TWA) appears to be reversed. Moreover, Mr. Jason explained how during the evacuation procedure, the Valve was examined and cycled by manipulating the hand wheel into both the "open" and "closed" positions multiple times, and that during each iteration, the Valve operated properly (Doc 29, ¶15).

Plaintiffs' cause of action grounded in Res Ipsa Loquitor must be dismissed, because res ipsa loquitor is not recognized as a separate cause of action. Rather, it is an evidentiary doctrine (Keene v. Marketplace, 114 AD3d 1313 [4th Dept 2014]).

In light of the foregoing, Defendants have demonstrated entitlement to judgment, as a matter of law, in connection with Mr. Jayes' claims. Accordingly, Mrs. Jayes' claim for loss of consortium is likewise subject to dismissal (Millington v. Southeastern Elevator Co., 22 NY2d 498 [1968] [termination of husband's claim by judgment bars wife's cause of action for loss of consortium]).

The burden thus shifted to Plaintiffs to submit proof, in admissible form, sufficient to establish the existence of genuine issues of material fact (Ferluck, 12 NY3d, at 320).

Mr. Jayes testified at his deposition that he called "Irish"^[FN1] after the Incident to inform them about the Incident, and that someone from "Irish" came to his residence to pick up the Tank (Doc. 25, p. 48). Mr. Jayes further testified that this person told him "they probably overfilled it" (the "Statement") (Id.). Plaintiffs have been unable to identify the person who made the alleged Statement.

Plaintiffs' contention that the Statement constitutes a statement against Irish Welding's interest is misplaced, because Plaintiffs have not demonstrated that such person (who is unknown) made the Statement within the scope of his authority (Loschiavo v. Port Auth. of NY, 58 NY2d 1040, 1041 [1983] ["trial court, in excluding the testimony offered by plaintiff, properly applied this State's current hearsay rule. Pursuant to this rule, the hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority"]).

Plaintiffs next dispute the observations and findings made during the parties' respective experts' Inspection of the Tank and Valve on the basis that Irish Welding has failed to establish a proper chain of custody. This contention is belied by the affidavit of Laurie Irish-Jones, Defendants' part-owner and CEO, in which she establishes the chain of custody (Doc. No. 51).

According to Ms. Irish-Jones, in May 2016, she received a call from Anita Foss at Irish Propane from a customer regarding what was believed to be a leaking propane tank. The customer requested that the tank be picked up. When an employee of Irish Propane went to retrieve the tank, it was discovered that it was a CO2 (not a propane) tank, and was therefore taken to Irish Welding. The employee brought the tank directly to Ms. Irish-Jones and she noted that it was Plaintiffs' Tank (having received such information from Ms. Foss). Ms. Irish-Jones maintained the Tank in her locked office until the inspection in February 2020, and she contends that "[a]t no point in time was the CO2 cylinder ever tampered with" (Id., at ¶¶3-6).

Plaintiffs have not submitted any evidence that Irish Welding failed to establish a proper chain of custody. They suggest it, and similarly suggest that Defendants may have tampered with the Tank prior to the inspection, perhaps even replacing a blown rupture disc with a new rupture disc. However, they offer no support for these suggestions, which amount to the "[m]ere conclusions, expressions of hope or unsubstantiated allegations or assertions [which] are insufficient" to defeat summary judgment (Gilbert Frank Corp., 70 NY2d at 967).

Moreover, Mr. Jason stated in his reply affidavit that upon inspection, the Tank and Valve did not reflect the marring that would be associated with tampering with the Tank and Valve:

Cylinders and valves designed to contain compressed gases are made with materials to withstand high pressure. They are not designed to be able to easily be disconnected. A valve is made of brass, and in order to connect/disconnect a cylinder to a cylinder valve, and/or remove or replace a rupture disc located deep inside the chamber of a cylinder valve, requires the use of a combination of tools and a vice. These tools will mare the brass valve or the aluminum cylinder, creating forensic markings or striations that are visible to the naked eye (Doc. 53, ¶31).

It should also be noted that Plaintiff's "chain of custody" and "tampering" contentions are after-the-fact arguments made for the first time in opposition to Defendants' motion. Plaintiffs did not assert these arguments at the time the Tank and Valve were inspected in February 2020. Indeed, as of the inspection, all parties (including Plaintiffs) proceeded as if the tank and valve being tested were the Tank and Valve involved in the Incident.

Having proceeded with the inspection, Plaintiffs now seek to distance themselves from its results with after-the-fact conclusory contentions. It begs the question: why would Plaintiffs spend the time and funds associated with having an expert consultant inspect a tank and valve if there were even the slightest question as to whether the items being inspected were not the Tank and Valve involved in the Incident, or that they had been tampered with? For all of these reasons, Plaintiffs' "chain of custody" and "tampering" contentions are waived.

Mr. Shellenbarger is a registered professional engineer, licensed in New York and Pennsylvania. He has in excess of thirty (30) years of relevant industry experience designing, selling, manufacturing, and managing companies making most valve types, including valves that use rupture discs (Doc. 43, ¶¶1-4).

Irish Welding affixed a warning label on the Tank, after filling it. Mr. Shellenbarger opined that the warning provided on the label was deficient and failed to conform to recognized industry standards, because it lacked information on how to safely transport a CO2 cylinder in a motor vehicle (see 49 CFR 171.1[d][6] and American National Standard Institute ["ANSI"] Z535.4) . However, 49 CFR 171.1(d)(6) exempts from application the "transportation of hazardous material by an individual for non-commercial purposes in a private motor vehicle," and ANSI Z535.4 is voluntary guideline that does not address transportation.

Next, Mr. Shellenbarger opined that the fact that the Tank was approximately 0.056 short of being full was indicative that a catastrophic discharge of CO2 occurred on the date of the Incident, significant enough to cause the serious personal injuries complained of herein (Doc. 43, ¶¶30-32). However, the loss of 0.056 pounds of CO2 means that the Tank was 97.76% full. Such a loss is minuscule and cannot lead to the conclusion that the Tank was overfilled. The fact [*6]that the Tank had so much product left in it at the time of inspection indicates that it was not overfilled, because the rupture disc was found intact. Rather, the 0.056 lb. weight differential is indicative that either the Valve was opened/closed briefly (inadvertently or otherwise) or that the Tank was never completely filled with exactly 2.5 lbs. CO2 to begin with (Doc. 53, ¶11).

Mr. Shellenbarger's opinion that the Incident may have occurred because the Tank's rupture disc may have been damaged or deformed does not lead to a finding of liability against Irish Welding, because Irish Welding did not manufacture the Tank. In addition, there is no basis for the opinion that the rupture disc may have been damaged or deformed, because it was found to be neither damaged, nor deformed at the inspection.

Moreover, Mr. Shellenbarger acknowledged that the Tank had "an unguarded valve handle which can be bumped when dropped, moved, turned, or other movement against another object causing unintentional opening, releasing CO2 to atmosphere" (Doc. 43, ¶58). Thus, to the extent the Valve was inadvertently opened during transport in Mr. Jayes' vehicle, Irish Welding would not be liable for any personal injuries associated therewith, because it did not design, manufacture, or sell the Valve and Tank.

While conflicting opinions of the parties' respective experts may present credibility issues that cannot be resolved on a motion for summary judgment (Haas v. F.F. Thompson Hosp., Inc., 86 AD3d 913, 914 [4th Dept 2011]), the Court rejects Mr. Shellenbarger's opinions, because in some circumstances they conflict with the facts and circumstances of this matter and in other circumstances there is no basis for them.

Plaintiff next contends that the underlying purchase and sale transaction between Mr. Jayes and Irish Welding is a "hybrid service-sale transaction" that may "give rise to a claim for breach of warranty, if the sales aspect of the transaction predominates and the service aspect is merely incidental" (Schenectady Steel Co., Inc. v. Bruno Trimpoli General Construction Co., Inc., 43 AD2d 234 [3d Dept 1974, affid, 34 NY2d 939 [1974]). However, the Court need not determine whether the underlying transaction could lead to a breach of warranty claim, because a breach, if any, would relate to the sufficiency of the Tank in permitting a catastrophic release of CO2, and Irish Welding was in no way responsible for Mr. Jayes' personal Tank and Valve. A breach of warranty claim could not be related to the CO2 gas provided by Irish Welding, because there is no claim that there was anything wrong with the gas.

Finally, Defendants have objected to Plaintiffs' counsel's reply affirmation in connection with Plaintiffs' cross-motion (Doc. 57), on the ground that much of it constitutes an improper sur-reply to Defendants' motion. Having read the reply affirmation, the Court agrees, and (i) the Court has not considered paragraphs 3-24 and 30-37 thereof and (ii) in the event of an appeal, such paragraphs shall be redacted from Document 57 for purposes of the record on appeal.

In light of the foregoing, it is hereby

ORDERED, that Defendants' motion for summary judgment is granted and the Amended Complaint is hereby dismissed. The cross-motion is denied as moot.

This constitutes the Decision and Order of this Court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.