In Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29 (2011), a recent decision from the highest state court in New York, the New York Court of Appeals, a defense attorney's affirmation in support of its defense was held to be insufficient to satisfy its summary judgment burden. In the case, the plaintiff sued entities responsible for the manufacture, distribution and package design of a product sold under the brand name “Lewis Red Devil Lye” (“RDL”). RDL, commonly referred to as "lye," is 100% sodium hydroxide and is commonly used to clear clogged drains. The plaintiff was injured when he was using RDL to clear a clogged floor drain of the Manhattan restaurant where he worked. The defendants argued that the plaintiff mishandled the RDL product.
The Court denied the defendants motion, stating the following: “in support of their motion here…defendants state only, in effect, that lye is what it is, that everyone knows lye is dangerous…while it is true that lye is dangerous and that [RDL] is lye, a mere statement in an attorney’s affirmation in support of a motion for summary judgment to that effect does not result in a shift of the burden to plaintiff to then explain how RDL could be made safer…defendants were required to demonstrate that RDL was reasonably safe for its intended us, but they offered no such evidence.”
Salvatore R. Marino, Esq.