Shalini Schetty, plaintiff, v. ITC (2011)

Argued—September 26, 2011

DECISION & ORDER

Goldberg Segalla, LLP, Buffalo, N.Y. (Matthew S. Lerner and Joseph J. Welter of counsel), for fourth-party defendant-appellant.

In an action to recover damages for personal injuries, the fourth-party defendant appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered August 10, 2010, which denied its motion pursuant to CPLR 3211(a)(1) to dismiss the fourth-party complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced an action against Target Corporation (hereinafter Target), Kenneth Cole Productions, L.P. (hereinafter Kenneth Cole), and ITC Trading Co. (hereinafter ITC), alleging that they negligently manufactured, sold, and distributed shoes that caused her to suffer personal injuries.   Following the commencement of a third-party action by Target and Kenneth Cole against, among others, ITC, ITC commenced a fourth-party action against the appellant, alleging that Target and Kenneth Cole had retained the appellant to maintain quality control and conduct inspection of the shoes being manufactured for Target and Kenneth Cole at a particular factory in China, and to ensure that any shoes so manufactured were safe and free from any defects or apparently dangerous conditions.   The appellant thereafter moved to dismiss the fourth-party complaint based on documentary evidence (see CPLR 3211[a][1] ).

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must “utterly refute [ ] plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326;  see Bodden v. Kean, 86 AD3d 524, 526).   Here, the proffered evidence did not conclusively refute ITC's allegations that Target and/or Kenneth Cole retained the appellant to maintain quality control and conduct inspections of the shoes, and to ensure that they were free from defects (see Russo v. Macchia–Schiavo, 72 AD3d 786, 787).   Accordingly, the Supreme Court properly denied the appellant's motion pursuant to CPLR 3211(a)(1) to dismiss the fourth-party complaint.

SKELOS, J.P., BALKIN, LEVENTHAL and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court