Berger v. Mazda Motor of America, Inc.
Filing
52
MEMORANDUM AND ORDER granting in part and denying in part 48 Motion for Summary Judgment. For the reasons discussed in the attached Memorandum and Order, the Court grants in part and denies in part Defendant's motion for summary judgment. Ordered by Judge Margo K. Brodie on 3/30/2019. (Morel, Christopher)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------SARA BERGER,
Plaintiff,
v.
MEMORANDUM & ORDER
16-CV-1835 (MKB) (CLP)
MAZDA MOTOR OF AMERICA, INC.,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Sara Berger filed the above-captioned action on November 24, 2015, against
Defendant Mazda Motor of America, Inc., in the New York State Supreme Court, County of
Kings. (Notice of Removal, Docket Entry No. 1; Compl., annexed to Notice of Removal as Ex.
A, Docket Entry No. 1-1.) Plaintiff alleges that she suffered an injury as a result of a defective
vehicle she purchased from Defendant and also contends that because of the vehicle’s defective
conditions, Defendant breached the express and implied warranties of merchantability. (Compl.)
On July 6, 2018, Defendant moved for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. (Def. Mot. for Summ. J. (“Def. Mot.”), Docket Entry No. 48; Def.
Mem. of Law in Supp. of Def. Mot. (“Def. Mem.”), Docket Entry No. 48-16.) Plaintiff opposed
the motion. (Pl. Mem. of Law in Opp’n to Def. Mot. (“Pl. Opp’n”), Docket Entry No. 45.) On
August 8, 2018, the Court referred Defendant’s motion to Magistrate Judge Cheryl L. Pollak for
a report and recommendation.
By report and recommendation dated March 6, 2019, Judge Pollak recommended that the
Court grant in part and deny in part Defendant’s motion for summary judgment (the “R&R”).
(R&R, Docket Entry No. 50.) For the reasons set forth below, the Court grants in part and denies
in part Defendant’s motion for summary judgment. The Court denies Defendant’s motion as to
Plaintiff’s manufacturing defect and breach of express warranty claims as they relate to the
passenger side seat. The Court grants Defendant’s motion as to Plaintiff’s remaining claims.
I.
Background
Factual background
The facts are undisputed, unless otherwise noted. In August of 2014, Plaintiff purchased
a 2015 Mazda CX-5 Grand Touring SUV (the “Vehicle”) from an authorized Mazda dealership
for $35,000 and financed $22,000 of the purchase price. (Defendant’s Rule 56.1 Statement of
Undisputed Material Facts (“Def. 56.1”) ¶ 1, Docket Entry No. 48-17; Pl. Response to Def. 56.1
(“Pl. Resp. 56.1”) ¶ 1, Docket Entry No. 46.) Plaintiff purchased the Vehicle after researching
and test driving several other vehicles, and, although she liked some of those other vehicles
better than the Vehicle, she “settled” on the Vehicle because it was within her budget. (Def. 56.1
¶ 2; Pl. Resp. 56.1 ¶ 2.) Shortly after Plaintiff purchased the Vehicle, the dealership closed;
Plaintiff would not have purchased the Vehicle from that dealership had she known it would
close so soon after her purchase. (Def. 56.1 ¶ 2; Pl. Resp. 56.1 ¶ 2.)
Plaintiff drives the Vehicle in New York City and parks it near her home in Brooklyn,
New York. (Def. 56.1 ¶ 6; Pl. Resp. 56.1 ¶ 6.)
i.
Vehicle warranty
The Vehicle came with a New Vehicle Limited Warranty promising that the Vehicle was
“free from defects in material or workmanship,” and that “a Mazda Dealer will make necessary
repairs, using new or remanufactured parts, to correct any problem covered by this warranty
without charge to” Plaintiff. (Def. 56.1 ¶ 3; Pl. Resp. 56.1 ¶ 3); New Vehicle Limited Warranty
12, annexed to Def. Mot. as Ex. M, Docket Entry No. 48-14.)
2
ii.
Plaintiff’s injury
On March 11, 2015, Plaintiff was sitting in the driver’s seat of the Vehicle while parked
on the street. (Dep. of Sara Berger (“Berger Dep.”) 113, annexed to Def. Mot. as Ex. D, Docket
Entry No. 48-5.) Plaintiff was getting ready to exit the Vehicle when she reached for her cellular
telephone under the passenger side seat and sustained a laceration to her left thumb, which
required six stitches.1 (Def. 56.1 ¶ 21; Pl. Resp. 56.1 ¶ 21; Berger Dep. 114:24–25, 115:4–9,
157:14–19.) Plaintiff contends that the injury was caused “by the protruding sharp metal on the
underside of the front passenger side seat” of the Vehicle. (Pl. Resp. 56.1 ¶ 21.) At the time of
the incident, the interior of the Vehicle was well lit. (Berger Dep. 150:7.) Plaintiff looked at the
area under the seat to determine what caused the injury. (Berger Dep. 150:11.) Plaintiff testified
that “nothing ever happened to her” when reaching under the passenger side seat “in her other
car.” (Pl. Resp. 56.1 ¶ 21; Berger Dep. 112:4–12, 113:8–10.) The injury left Plaintiff with an
approximately one and one-half inch scar on the right side of her left thumb. (Def. 56.1 ¶ 21; Pl.
Resp. 56.1 ¶ 21.)
Defendant contends that when Plaintiff sustained the cut, she did not feel “contact with
any part of the under-seat assembly,” (Def. 56.1 ¶ 21), and did not check to determine what
caused her injury, (Def. 56.1 ¶ 22; Pl. Resp. 56.1 ¶ 22; Berger Dep. 150:11–15). Defendant also
states that the Vehicle’s passenger side “seat has plastic trim which wraps around both the inside
and outside of the lower sides of the seat covering the seat structure and adjusting mechanisms
under the seat” and the “seat track adjuster lever, where one would expect a user to place his or
hands [sic], was across the middle forward are [sic] of the seat and had a smooth surface.” (Def.
56.1 ¶ 23.)
1
Plaintiff could not recall how her cellular telephone ended up under the passenger side
seat. (Berger Dep. 116–17.)
3
In April of 2015, repairs were made to the Vehicle’s front passenger seat. An invoice
report from Manfredi Auto Group, a dealer in Staten Island, dated April 13, 2015 states that tape
was installed “over sharp arm” under the driver and front passenger side seats. (Manfredi Auto
Group Invoice (“April 2015 Invoice”), annexed to Graves Decl. as Ex. F, Docket Entry No. 487.)
iii. Plaintiff’s expert
On September 9, 2017, Plaintiff’s expert, Dr. George M. Lear, conducted an inspection
and testing of the seat projections and edges of the Vehicle. (Pl. Resp. 56.1 ¶ 23; Aff. of Dr.
George M. Lear (“Lear Aff.”) ¶ 8, annexed to Decl. of Marshall B. Bellovin (“Bellovin Decl.”)
as Ex. B, Docket Entry No. 47-1.) Plaintiff reenacted the incident that gave rise to her injury to
assist Dr. Lear’s inspection and testing of the passenger side seat. (Lear Aff. ¶ 8.)
In conducting his examination, Dr. Lear found “a number of sharp edges on the underside
of the front passenger seat and at least two sharp points that could cause the type of injury
Plaintiff suffered in this case.” (Pl. Resp. 56.1 ¶ 23–24; Lear Aff. ¶ 8.) Dr. Lear also found that
one of the attachment bolts in the front passenger seat was “severely damaged.” (Lear Aff. ¶ 9.)
“[T]he damaged bolt was removed and replaced with a hex head bolt.” (Id.) Dr. Lear concluded
that the “protruding sharp edges on the underside of the front passenger seat is not a reasonably
safe, state-of-the-art product or design — as manufactured or distributed.” (Id. ¶ 12.)
iv. Other alleged defective conditions
1.
April and May of 2015 replacements
On April 13, 2015, Manfredi Auto Group replaced the Vehicle’s right rear shock
absorber “as a warranty item,” after Plaintiff complained of a squeaking noise. (Def. 56.1 ¶ 4;
Pl. Resp. 56.1 ¶ 4.) The replacement resolved Plaintiff’s complaint. (Def. 56.1 ¶ 4; Pl. Resp.
56.1 ¶ 4.)
4
Several weeks later, on May 2, 2015, Manfredi Auto Group replaced the Vehicle’s left
front inner tire rod, “also as a warranty item,” in response to Plaintiff’s complaints of a metal-onmetal grinding noise, which stopped after the repair was completed. (Def. 56.1 ¶ 5; Pl. Resp.
56.1 ¶ 5.)
2.
Alleged damage to the Vehicle
In February,2 the Vehicle was hit while it was parked and sustained damage to the “side
panel, rear light and bumper.” (Def. 56.1 ¶ 8; Pl. Resp. 56.1 ¶ 8; Pl. Am. Resp. to Interrog. 8,
annexed to Def. Mot. as Ex. C, Docket Entry No. 48-4.) Plaintiff states that there was a dent “a
few inches long” in the Vehicle that “presented as a paint defect” and was visible only in
sunlight.
Defendant contends that Plaintiff could not identify the alleged defect in photographs of
the Vehicle taken in varying lighting conditions, or on the Vehicle itself during a March 21, 2017
inspection of the Vehicle. (Def. 56.1 ¶¶ 9–10; Pl. Resp. 56.1 ¶ 9–10.) Defendant also contends
that its expert, Jason Arst, inspected the Vehicle on February 24, 2017 and April 20, 2017, and
was unable to identify “any paint defect that could be attributable to the manufacturing process.”
(Mazda 56.1 ¶ 11; Aff. of Jason Arst (“Arst Aff.”), annexed to Decl. of Yelena Graves (“Graves
Decl.”) as Ex. K, Docket Entry No. 48-15.)
3.
The keyless entry feature
Plaintiff contends that the keyless entry feature of the Vehicle did not work at times. As
a result, Plaintiff was locked out of the Vehicle because of the “defective and unreliable keyless
2
The parties do not identify the year.
5
entry feature” and had to wait until the message on the Vehicle’s dashboard disappeared.3 (Pl.
Resp. 56.1 ¶ 12.) Defendant contends that when the keyless entry feature was not working,
Plaintiff was still able to access the Vehicle using a “regular key” and the message “disappeared
within hours.” (Def. 56.1 ¶ 12; Berger Dep. 98:8–13.)
The Vehicle’s operation manual states that the key transmitter “may not function
correctly” when the device is carried with a cellular telephone or in other situations.4 (Def. 56.1
¶ 13; Pl. Resp. 56.1 ¶ 13.) In addition, the Vehicle operation manual specified that “[t]he keyless
entry system is fully operational (door/liftgate lock/unlock) when the push button start is
switched off. The system does not operate if the push button start is switched to any position
other than off.” (Def. 56.1 ¶ 14; Pl. Resp. 56.1 ¶ 14.) Plaintiff does not remember what position
the push button was in when the keyless entry feature did not work. (Def. 56.1 ¶ 15; Pl. Resp.
56.1 ¶ 15.)
During Arst’s inspection of the Vehicle, a “key battery is low” message appeared on the
Vehicle’s dashboard. (Def. 56.1 ¶ 16; Pl. Resp. 56 1 ¶ 16.) Utilizing a diagnostic tool to obtain
the status of the Vehicle’s electronic control systems, Arst learned that the “key battery is low”
message had been occurring for approximately one year prior to the Vehicle’s first inspection on
February 24, 2017. (Def. 56.1 ¶ 17; Pl. Resp. 56.1 ¶ 17; Arst Aff. ¶ 8.) Plaintiff testified that the
message appeared “for the first time a very short time after she got the car.” (Pl. Resp. 56.1 ¶ 17.)
Plaintiff observed the message and researched what kind of replacement battery the key needed,
but did not replace the battery. (Def. 56.1 ¶ 17; Berger Dep. 93:6–94:25.)
3
The message on the dashboard was that “the key was not recognized or found.” (Def.
56.1 ¶ 12.
4
Defendant alleges Plaintiff carried her cellular telephone in her pocketbook with the
key. (Mazda 56.1 ¶ 13.)
6
4.
The seat warmer
Plaintiff also raises issues with the Vehicle’s seat warmers. (Def. 56.1 ¶¶ 18–20; Pl.
Resp. 56.1 ¶ 18.) She alleges that the seat warmers took longer than normal to heat up, as
confirmed by Dr. Lear who observed that “the performance of the seat heater was found to be
much slower than the [five] to [ten] minutes most seat heaters require to warm up.” (Pl. Resp.
56.1 ¶ 18; Lear Report ¶ 7.) Defendant contends that there are no industry standards setting
specific temperature requirements for seat warmers. (Def. 56.1 ¶ 18.). In addition, the
performance of seat warmers is dependent on factors like ambient temperatures and clothing.
(Def. 56.1 ¶ 18.) Further, an invoice from Manfredi Auto Group indicated that the seat warmer
had been inspected and was “working properly”; Defendant’s expert also determined that the
seat warmer was working properly. (Def. 56.1 ¶¶ 18–20.)
5.
Contact marks
The Vehicle has some “contact marks” from other objects.5 (Def. 56.1 ¶ 7; Pl. Resp. 56.1
¶ 7.)
Judge Pollak’s recommendation
Judge Pollak recommended that the Court deny summary judgment as to Plaintiff’s
manufacturing defect claim with regard to her hand injury because genuine disputed issues of
fact exist as to whether the seat was “physically flawed, damaged, or incorrectly assembled,” at
the time of manufacture. (R&R 12.)
As to Plaintiff’s design defect claim, Judge Pollak recommended that, to the extent
Plaintiff alleges a design defect claim with regard to the passenger side seat, the Court should
5
Plaintiff admits that there are marks on the Vehicle but notes that the cause of these
marks cannot be determined “beyond the extent that they were present at the time Jason Arst,
Defendant’s expert,” inspected the Vehicle. (Pl. Resp. 56.1 ¶ 7.)
7
grant summary judgment as to this claim because Plaintiff failed to show the existence of an
alternative design. (Id. at 16.)
In addition, Judge Pollak recommended that the Court deny Defendant’s motion for
summary judgment as to Plaintiff’s express and implied warranty claims with regard to the front
passenger side seat because a jury should decide whether the purported condition of the seat
interfered with Plaintiff’s ability to operate the Vehicle safely and in a typical manner. (Id. at
24.)
Judge Pollak further recommended that the Court grant summary judgment as to
Plaintiff’s claims for breach of express and implied warranty as to the keyless entry system,
squeaking noise and metal on metal grinding, paint defects, and seat warmer. (Id. at 27–34.)
Defendant’s objections to the R&R
Defendant objects to Judge Pollak’s conclusion that there are genuine issues of fact with
regard to Plaintiff’s manufacturing defect and breach of express and implied warranty claims
pertaining to her hand injury. (Pl. Obj. to R&R (“Pl. Obj.”) 1, Docket Entry No. 51.) Defendant
argues that (1) Plaintiff failed to present facts showing that the alleged sharp metal pieces “were
unintended as opposed to part of the Vehicle’s design,” (2) that the alleged sharp metal pieces
did not interfere with Plaintiff’s ability to drive the Vehicle, and (3) that, as to the breach of
express warranty claim, the provided warranty cannot be triggered in the absence of a
manufacturing defect. (Id. at 6–7.)
II. Discussion
Standards of review
i.
Report and recommendation
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate
8
judge.” 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015). The district court may adopt those portions of the recommended ruling to which no
timely objections have been made, provided no clear error is apparent from the face of the
record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1
(E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only
conclusory or general objections. Benitez v. Parmer, 654 F. App’x 502, 503–04 (2d Cir. 2016)
(holding “general objection[s] [to be] insufficient to obtain de novo review by [a] district court”
(citations omitted)); see Fed. R. Civ. P. 72(b)(2) (“[A] party may serve and file specific written
objections to the [magistrate judge’s] proposed findings and recommendations.” (emphasis
added)); see also Colvin v. Berryhill, 734 F. App’x 756, 758, 2018 WL 2277791, at *1 (2d Cir.
May 18, 2018) (“Merely referring the court to previously filed papers or arguments does not
constitute an adequate objection under . . . Fed. R. Civ. P. 72(b).” (quoting Mario v. P & C Food
Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002))).
ii.
Summary judgment
Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Wandering Dago, Inc. v.
Destito, 879 F.3d 20, 30 (2d Cir. 2018); see also Cortes v. MTA NYC Transit, 802 F.3d 226, 230
(2d Cir. 2015). The role of the court “is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual dispute exists.” Rogoz v. City of
Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp., 609 F.3d
537, 545 (2d Cir. 2010); and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50
9
(1986)). A genuine issue of fact exists when there is sufficient “evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. The “mere existence of a
scintilla of evidence” is not sufficient to defeat summary judgment. Id. The court’s function is
to decide “whether, after resolving all ambiguities and drawing all inferences in favor of the
nonmoving party, a rational juror could find in favor of that party.” Pinto v. Allstate Ins. Co.,
221 F.3d 394, 398 (2d Cir. 2000).
Unopposed portions of the R&R
No party objects to Judge Pollak’s recommendation that the Court grant summary
judgment as to Plaintiff’s design defect claim and all breach of warranties claims pertaining to
the alleged paint defect, noise complaints, keyless entry issues, and seat warmer performance
issues. The Court has reviewed the unopposed portions of R&R and, finding no clear error, the
Court adopts them pursuant to 28 U.S.C. § 636(b)(1).
Manufacturing defect claim
Defendant argues that Judge Pollak “misapprehended the nature of the manufacturing
defect claim” and that Plaintiff failed to present evidence that the “sharp metal pieces were
unintended and present a departure from the intended design” of the Vehicle. (Def. Obj. to the
R&R (“Def. Obj.”) 8, Docket Entry No. 51.)
Plaintiff argues that her deposition testimony and Dr. Lear’s inspection of the Vehicle
provide sufficient facts to support Plaintiff’s claim that a manufacturing defect existed on the
underside of the front passenger seat and that, as a result of the defect, she was injured. (Pl.
Opp’n 6.)6
6
Plaintiff did not file a response to Defendant’s objections to the R&R. Nevertheless,
the Court considers arguments Plaintiff made in response to Defendant’s motion for summary
judgment.
10
Under New York law, “a manufacturer of a defective product is liable for injuries caused
by the defect.” In re New York City Asbestos Litig., 27 N.Y.3d 765, 786 (2016). “Under New
York’s modern approach to products liability, a product has a defect that renders the
manufacturer liable for the resulting injuries if it: (1) “contains a manufacturing flaw”; (2) “is
defectively designed”; or (3) “is not accompanied by adequate warnings for the use of the
product.” Id. (citing cases). There are four theories under which a plaintiff may pursue recovery
based upon a claim of products liability: (1) strict liability, (2) negligence, (3) express warranty,
and (4) implied warranty. Oden v. Boston Sci. Corp., 330 F. Supp. 3d 877, 888 (E.D.N.Y. 2018)
(citing Hilaire v. DeWalt Indus. Tool Co., 54 F. Supp. 3d 223, 252 (E.D.N.Y. 2014)); Voss v.
Black & Decker Mfg. Co., 59 N.Y.2d 102, 106–07 (1983).
To prevail on a manufacturing defect claim under theories of strict liability, negligence,
or breach of express or implied warranty, a plaintiff must allege that the specific product that
caused the plaintiff’s injury was not manufactured as designed or was not built to specifications.
See Tears v. Boston Scientific Corp., 344 F. Supp. 3d 500, 511 (S.D.N.Y. 2018); see also Minda
v. Biomet, Inc., 182 F.3d 900, 1999 WL 491877, at *1 (2d Cir. 1999) (“To prove the existence of
a manufacturing defect, a plaintiff must establish that the product was not built to specifications
or that it did not conform to the manufacturer’s intended design.”); McCarthy v. Olin Corp., 119
F.3d 148, 154–55 (2d Cir. 1997) (finding that a “a manufacturing defect . . . results when a
mistake in manufacturing renders a product that is ordinarily safe dangerous so that it causes
harm”); Guariglia v. Procter & Gamble Co., No. 15-CV-04307, 2018 WL 1335356, at *5
(E.D.N.Y. Mar. 14, 2018) (“[A] claim devoid of allegations that a particular unit differed when
compared to others in the same product line will be dismissed.”); Colon ex rel. Molina v. BIC
USA, Inc., 199 F. Supp. 2d 53, 85 (S.D.N.Y. 2001) (finding that to successfully plead a
manufacturing defect claim, the complaint must allege both “that a specific product unit was
11
defective as a result of some mishap in the manufacturing process itself, improper workmanship,
or because defective materials were used in construction,” and “that the defect was the cause of
plaintiff’s injury.” (quotation marks and citation omitted)); Caprara v. Chrysler Corp., 52
N.Y.2d 114, 128–29 (1981) (finding that a manufacturing defect in a product is one which results
from a mistake or error made during the manufacturing process); Angona v. City of Syracuse,
987 N.Y.S.2d 761 (App. Div. 2014) (finding that, in a strict products liability action, summary
judgment for the defendants was not warranted, where defendants did not establish that
the defect in the product did not exist at the time it left their control and the plaintiff’s expert
raised a triable issue of fact with respect to the adequacy of defendant’s quality control and
inspection procedures).
“Under New York law, [i]t is well settled that, whether [an] action is pleaded in strict
products liability, breach of warranty or negligence, it is a consumer’s burden to show that a
defect in the product was a substantial factor in causing the injury.” Vicusi v. P&G – Clairol,
Inc., 346 F. App’x 715, 716 (2d Cir. 2009); Restatement (Third) of Torts: Prod. Liab. § 2 (1998)
(stating that a manufacturing defect exists when there is a departure from the design
specifications of the product or when the product is “physically flawed, damaged, or incorrectly
assembled”).
A defendant moving for summary judgment on a manufacturing defect claim must meet
its initial burden “by presenting competent evidence” that the challenged product was “not
defective.” See Cassatt v. Zimmer, Inc., 75 N.Y.S.3d 764, 766 (App. Div. 2018); see also
Minda, 1999 WL 491877, at *1 (stating that a defendant moving for summary judgment on a
manufacturing defect claim “must submit proof in an admissible form establishing that plaintiff’s
injuries were not caused by a manufacturing defect in the product”). The burden “then shifts to
the plaintiff to demonstrate a triable issue as to whether in fact there was a defect.” Minda, 1999
12
WL 491877, at *1; Cassatt, 75 N.Y.S.3d at 766 (finding that after the defendant met its initial
burden, the plaintiff “failed to raise a triable issue of fact in opposition by either direct or
circumstantial evidence”); Brown v. Borruso, 660 N.Y.S.2d 780, 781 (App. Div. 1997) (“To
meet that burden, plaintiff cannot rely solely upon the occurrence of the accident, but must
submit some direct evidence that a defect existed.”). “The existence of a defect may be
established circumstantially, i.e., by evidence from which the jury could infer that the car did not
perform as intended.” See Fili v. Matson Motors, Inc., 590 N.Y.S.2d 961, 963 (App. Div. 1992).
In support of her manufacturing defect claim, Plaintiff submitted an affidavit from Dr.
Lear with his findings based on his inspection of the Vehicle and inspection of a similar vehicle,
a 2016 Toyota RAV-4. (Lear Aff. ¶ 4–5.) Dr. Lear observed “a number of sharp edges on the
underside of the front passenger seat and at least two sharp points that could cause the type of
injury that Plaintiff suffered.” (Lear Aff. ¶ 8.) He also observed a “sharp mounting tab” below
the front passenger seat where the “lock mechanism which held the module on the tab had failed
and the module was a loose slip fit.” (Id.) He concluded that the Vehicle’s “protruding sharp
edges on the underside of the front passenger seat is not a reasonably safe, state-of-the-art
product or design — as manufactured or distributed.”7 (Id. ¶ 12.)
Defendant does not dispute that repairs were made to the Vehicle’s front passenger seat
in April of 2015. An invoice report from Manfredi Auto Group dated April 13, 2015 states that
tape was installed “over sharp arm” under the driver and front passenger side seats. (April 2015
Invoice.) The fact that repairs were made to the passenger side seat of the Vehicle lends support
7
Defendant argues that Dr. Lear’s conclusion “implicates a design defect, not a
manufacturing defect.” (Def. Obj. 9.) Notwithstanding Defendant’s characterization of Dr.
Lear’s conclusions, his observations and expert report nevertheless support Plaintiff’s
manufacturing defect claim and creates a triable issue of fact as to whether her injury was caused
by the alleged manufacturing defect.
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to Plaintiff’s argument that the seat, as manufactured, deviated from its intended design. In
addition, Plaintiff testified that she observed a lot of “sharp metal areas” when she took the car to
the dealer for a service inspection. (Berger Dep. 158:20–22.)
Construing the evidence in the light most favorable to Plaintiff, the evidence raises a
triable issue of fact as to whether Plaintiff’s injury was caused by a manufacturing defect in the
vehicle. See Fili, 590 N.Y.S.2d at 963 (finding that the plaintiff’s “pretrial testimony that he did
not depress the accelerator was sufficient to raise a triable issue of fact whether the accident was
caused by a mechanical defect in the vehicle”). Accordingly, the Court denies Defendant’s
motion for summary judgment as to Plaintiff’s manufacturing defect claim.
Breach of implied warranty of merchantability claim
Defendant argues that the Court should grant summary judgment as to Plaintiff’s implied
warranty of merchantability claim with regard to the hand injury because it “cannot be disputed
that the alleged sharp metal pieces under the passenger seat did not affect the drivability of the
Vehicle and Plaintiff’s ability to use it safely for transportation.” (Def. Obj. 13.)
Plaintiff does not argue that the underside of the front passenger seat affected the
drivability of the Vehicle; instead, Plaintiff argues that a manufacturing defect caused her
physical injury and that she was “deprived . . . from her enjoyment of her new car.” (Pl. Opp’n
15.)
Under the New York law, the implied warranty of merchantability requires that the
product sold be reasonably fit for the ordinary purpose for which it was intended. See Porrazzo
v. Bumble Bee Foods, LLC, 822 F. Supp. 2d 406, 414, 415 (S.D.N.Y. 2011) (holding that “under
New York law, a manufacturer may be held liable for breach of implied warranty of
merchantability when its products are not ‘fit for the ordinary purposes for which such goods are
used.”’ (quoting N.Y. U.C.C.§ 2-314(2)(c))). Section 2–314 of the New York Uniform
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Commercial Code (“UCC”) provides, in pertinent part, that “a warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a merchant with respect to
goods of that kind.” N.Y. U.C.C. § 2–314(1). To be merchantable, the goods must be: (1) fit for
the ordinary purpose for which they are used; (2) capable of passing without objection in the
trade under the contract description; and (3) of fair and average quality for such goods.
N.Y.U.C.C. § 2–314(2)(c).
The focus of a breach of implied warranty of merchantability claim is whether the
product “meets the expectations for the performance of the product when used in the customary,
usual[,] and reasonably foreseeable manners.” Denny v. Ford Motor Co., 87 N.Y.2d 248, 258–
59 (1995). Several courts in this district have held that, with respect to a motor vehicle, the
“‘ordinary purpose’ to which the implied warranty speaks is ‘to enable the purchaser to transport
herself upon the streets and highways . . . in a reasonably safe manner.’” Jackson v. Eddy’s LI
RV Center, Inc., 845 F. Supp. 2d 523, 531 (E.D.N.Y. 2012) (quoting Enobakhare v. Carpoint,
LLC, No. 08-CV-4798, 2017 WL 703920, at *9 (E.D.N.Y. Jan. 10, 2011); Diaz v. Paragon
Motors of Woodside, Inc., 424 F. Supp. 2d 519, 541 (E.D.N.Y. 2006) (“[A]t a bare minimum[,]
the ordinary purpose for an automobile is to enable the purchaser to transport herself upon the
streets and highways of this state or any other in a reasonably safe manner.” (citation and internal
quotation marks omitted)). In other words, the implied warranty is breached where the product
in question is not fit for the ordinary purpose for which it is to be used. See Denny, 87 N.Y.2d at
258 (citing N.Y. U.C.C. § 2–314(2)(c)). An implied warranty provides for a “minimal level of
quality” and “arises automatically in every sale of goods by one who is a merchant in those
goods.” Meserole v. Sony Corp. of Am., Inc., No. 08-CV-8987, 2009 WL 1403933, at *8
(S.D.N.Y. May 19, 2009) (citation and internal quotation marks omitted).
To “succeed on an implied warranty claim, the plaintiff ‘must show both the existence
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and breadth of the warranty and that the breach was the proximate cause of [the] plaintiff’s
damages.’” Mahoney v. Endo Health Solutions, Inc., No. 15-CV-9841, 2016 WL 3951185, at *4
(S.D.N.Y. July 20, 2016) (quoting Bellevue S. Associates v. HRH Const. Corp., 78 N.Y.2d 282,
298 (1991)).
Defendant argues that the “alleged sharp metal pieces under the passenger seat did not
affect the drivability of the Vehicle and Plaintiff’s ability to use it safely for transportation.”
(Def. Obj. 13.) The Court agrees. Plaintiff has not presented any facts that the alleged defect
under the passenger side seat in any way affected the Vehicle’s drivability or usefulness. Indeed,
Plaintiff’s injuries arose because she was reaching for her cellular telephone under the passenger
side seat, which has nothing to do with the drivability and usefulness of the vehicle. Moreover,
Plaintiff testified during her deposition that she continued using the Vehicle after her injury,
including using it to drive to work. (Berger Dep. 207:16–18.)
Because Plaintiff has not provided any evidence that would allow a reasonable juror to
find that the alleged defect would affect the drivability or usefulness of the Vehicle, the Court
grants Defendant’s motion for summary judgment as to Plaintiff’s implied warranty of
merchantability as it relates to the passenger side seat. See Hines v. Mercedes-Benz USA, LLC,
358 F. Supp. 2d 1222, 1226 (N.D. Ga. 2005) (granting the defendant’s summary judgment
motion as to the implied breach of warranty claim where the plaintiff failed to present facts that
alleged defects in the driver’s seat rendered the vehicle inoperable or not usable for its intended
purpose).
Breach of express warranty
Defendant argues that Plaintiff cannot recover for breach of express warranty in the
absence of a manufacturing defect. (Def. Obj. 14.)
An express warranty is an “affirmation of fact or promise made by the seller to the buyer
16
which relates to the goods and becomes part of the basis of the bargain.” N.Y.U.C.C. § 2313(1)(a). In order to state a claim for a breach of an express warranty, a plaintiff must plead
“that an express warranty existed, was breached, and that [the plaintiff] had relied on that
warranty.” Reed v. Pfizer, Inc., 839 F. Supp. 2d 571, 578 (E.D.N.Y. 2012). Plaintiffs cannot
recover under a breach of express warranty claim unless the product is defective. See Dixon v.
Ford Motor Co., No. 14-CV-6135, 2015 WL 6437612, at *3 (E.D.N.Y. Sept. 30, 2015) (“[A]
successful breach of warranty claim requires that the product be defective.”) (citing Reed, 839 F.
Supp. 2d at 578).
Because the Court finds there are disputed issues of fact as to whether the passenger side
seat suffered from a manufacturing defect, the Court denies Defendant’s summary judgment
motion as to Plaintiff’s breach of express warranty claim.
III. Conclusion
For the foregoing reasons, the Court grants in part and denies in part Defendant’s motion
for summary judgment. The Court denies Defendant’s motion as to Plaintiff’s manufacturing
defect and breach of express warranty claims as they relate to the passenger side seat. The Court
grants Defendant’s motion as to Plaintiff’s remaining claims.
Dated: March 30, 2019
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
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