Avola et al v. Louisiana-Pacific Corporation et al

Filing 44

MEMORANDUM & ORDER denying 36 Defendant Louisiana-Pacific Corporation's Motion for Reconsideration. See attached Memorandum & Order. As indicated therein, the parties shall prepare and submit a joint pre-trial order, in compliance with this Court's Individual Rules, by 3/18/14. At such time, this Court will schedule a pre-trial conference, in anticipation of trial. Ordered by Judge Pamela K. Chen on 1/14/2014. (Lo, Justin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANTHONY AVOLA, et al.,
Plaintiffs,

MEMORANDUM & ORDER
ON DEFENDANT’S MOTION
FOR RECONSIDERATION

-against11-CV-4053 (PKC)
LOUISIANA-PACIFIC CORPORATION,
Defendant.
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PAMELA K. CHEN, United States District Judge:
This Court presumes the parties’ familiarity with the facts in this case, as well as its
decision granting summary judgment to Defendant Home Depot U.S.A., Inc., but denying
summary judgment to Defendant Louisiana-Pacific Corporation (“Louisiana-Pacific”), see Avola
v. Louisiana-Pacific Corp., No. 11-CV-4053, 2013 WL 4647535 (E.D.N.Y. Aug. 28, 2013)
(Chen, J.). On October 2, 2013, Louisiana-Pacific moved for this Court’s reconsideration of its
summary judgment decision. (Dkt. No. 36.) Louisiana-Pacific’s motion is DENIED, for the
reasons set forth below.
Louisiana-Pacific raises no arguments that “point to controlling decisions or data that the
court overlooked,” such that this Court, in its discretion, should reconsider its summary judgment
decision. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (Calabresi, J.). Most of
the arguments in Louisiana-Pacific’s motion—i.e., that the Related Statements are hearsay and
may not be used to show that Avola relied on the Advertisement, as recited therein, and that the
Advertisement and Related Statements are mere puffery and not actionable without a working
definition for “wood” or “traditional wood siding” (Dkt. No. 37 (“Def. Br.”), at 8-16)—are

merely attempts to “relitigate” issues that this Court’s summary judgment decision already
addressed, without citing to anything it “overlooked.” Shrader, 70 F.3d at 257.
At best, only one argument—that Avola failed to wear eye protection, despite the
warnings, which, according to Louisiana-Pacific, establishes that the cause of Avola’s injury was
his own failure and not the breach or falsity of the Advertisement (Def. Br., at 16-17)—stands
out as a possible basis for reconsideration, as it involves an issue that this Court did not address
in its summary judgment decision.

The argument, however, does not “alter” this Court’s

conclusion that a triable issue of fact remains as to the causation element, Avola, 2013 WL
4647535, at *13-14. Shrader, 70 F.3d at 257. Although Avola’s own failure—as opposed to just
the failure of LP SmartSide to “perform in accord with a promise voluntarily made,” 1 N.Y.
Prods. Liab. § 15:2—allegedly contributed to causing his injury, an issue of “plaintiff's alleged
contributory negligence” does not justify the dismissal of the breach of express warranty and
false advertising claims against Louisiana-Pacific on summary judgment.

See Cereo v.

Takigawa Kogyo Co., Ltd., 676 N.Y.S. 2d 364, 365 (4th Dep’t 1998); accord Sylvestri v. Warner
& Swasey Co., Inc., 398 F.2d 598, 601-602 (2d Cir. 1968) (affirming “the jury’s further finding
that the express warranty was breached and that this breach was a proximate cause of the
accident,” in spite of evidence that the plaintiff had made “numerous complaints” about the
problems with the product which eventually caused his accident).
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In denying reconsideration of its summary judgment decision, this Court directs the
parties to prepare and submit a joint pre-trial order, in compliance with this Court's Individual
Rules, by March 18, 2014, which is the date that Magistrate Judge Arlene R. Lindsay has
scheduled for a final conference. At such time, this Court will schedule a pre-trial conference, in
anticipation of trial.

SO ORDERED:

/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: January 14, 2014
Brooklyn, New York

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