AGNESINI v. SKECHERS USA RETAIL LLC (2025)

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered on or about April 11, 2024, which granted defendants Skechers USA Retail, LLC and Skechers USA, Inc.'s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly granted defendants' motion for summary judgment because plaintiff, who has not tested positive for any bloodborne diseases, failed to present evidence sufficient to raise a factual issue as to whether the sharp object contained inside of a Skechers' shoe was contaminated with a virus (see Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187 [2008];  Bishop v. Mount Sinai Med. Ctr., 247 A.D.2d 329, 331, 669 N.Y.S.2d 530 [1st Dept. 1998]).  We have previously declined to take a view that the probable presence of a virus may be sufficient to support recovery for emotional trauma (see Bishop, 247 A.D.2d at 332, 669 N.Y.S.2d 530).  Even if the probable exposure standard were to apply, the evidence does not support a finding that plaintiff met it, as she cannot demonstrate a logical probability that she was exposed to a pathogen (see Montalbano v. Tri–Mac Enters. of Port Jefferson, Inc., 236 A.D.2d 374, 375, 652 N.Y.S.2d 780 [2d Dept. 1997]).

We have considered the remaining contentions and find them unavailing.