Opinion
108570/05.
Decided April 20, 2010.
Motion sequence numbers 002, 003, and 004 are consolidated for disposition.
In this personal injury action, plaintiff James O'Sullivan alleges that, on January 1, 2005, he cut himself while shaving with dangerous and defective Gillette Mach 3 Turbo razor cartridges, which ultimately were determined to be counterfeit. Plaintiff claims that, as a result of shaving, he and his wife, Jodi O'Sullivan, experienced fear and anxiety over contracting blood-borne diseases, including HIV, AIDS, and hepatitis.
Defendant The Gillette Company ("Gillette") now moves, in motion sequence number 002, for an order: (1) pursuant to CPLR 3212, for summary judgment dismissing the cross claim asserted by second third-party defendant Supermarket Distributors of America, Inc. ("SDA") against it; and (2) pursuant to 22 NYCRR 130-1.1, granting costs and sanctions against SDA and/or its attorneys for frivolously withholding a stipulation of discontinuance with prejudice. Second third-party defendant SDA moves, under motion sequence number 003, for summary judgment dismissing the complaint and all cross claims as against it. Defendant/third-party plaintiff/second third-party plaintiff Duane Reade, Inc. ("Duane Reade") moves, under motion sequence number 004, for summary judgment dismissing the complaint and all cross claims and counterclaims asserted against it.
BACKGROUND
The razor cartridges were allegedly manufactured by Gillette, distributed by SDA, and sold by Duane Reade.
Plaintiff testified at his deposition that, on December 23, 2004, he purchased what appeared to be a package of four Gillette Mach 3 Turbo razor cartridges from a Duane Reade store located at 1185 Sixth Avenue in Manhattan (Plaintiff Dep., at 102, 108). Plaintiff used the razor cartridges at his home in Rockville Centre, Nassau County on the afternoon of January 1, 2005 ( id. at 124). Plaintiff testified that he opened up the package, and put a new razor cartridge into the handle ( id.). Plaintiff did not look at the razor cartridge before he used it ( id. at 125). As plaintiff began to shave with the razor cartridge, he thought that the blade felt dull, and experienced an excessive amount of "drag," friction, and irritation on his skin ( id. at 135, 138-140). Believing that there was something wrong with the blade, plaintiff stopped shaving ( id. at 135). At that point, plaintiff replaced the razor cartridge with another from the package, and began to shave again ( id.). Plaintiff experienced the same problems, and cut himself a little with the second blade ( id. at 135, 141). According to plaintiff, he cut himself approximately six times under his chin ( id. at 145). After examining the cartridges, plaintiff "freaked out" because he thought he was shaving with "dirty, used blades" ( id. at 135, 152). Upon hearing her husband, Mrs. O'Sullivan came upstairs to the bathroom where her husband was shaving ( id. at 152). Plaintiff told his wife that he was shaving with dirty, used blades, that someone must have tampered with the packaging, and that he had cut himself with those blades ( id. at 153). Plaintiff allegedly said to his wife, "God only knows what he was exposed to now" ( id.).
Plaintiff stated that he noticed that the razor blades were out of alignment, and that the lubrication strips were faded ( id. at 147). He also noticed that the blades appeared oxidized and dirty, and had hairs in them ( id. at 154, 156, 158, 159). Plaintiff testified that he threw away both blades that he used, but could not recall why ( id. at 150, 151). He applied alcohol and peroxide to his face after he shaved with the razor blades ( id. at 149). For the remainder of the day, plaintiff went online and did research on how long blood-borne diseases like AIDS and hepatitis C survive on a razor blade ( id. at 168).
On January 3, 2005, plaintiff returned to the Duane Reade store where he purchased the razor cartridges to file a complaint ( id. at 189). At some point thereafter, plaintiff spoke to a representative from Duane Reade, Tanya de Jesus, who requested that he send her one of the razor blades ( id. at 195). Plaintiff stated that he did not send one of the razor cartridges to Duane Reade, because he shortly thereafter consulted with an attorney ( id. at 196). Plaintiff was tested for hepatitis B and C, HIV, and other diseases within a few days after shaving with the blades ( id. at 200). The results were negative for any diseases ( id. at 205). Plaintiff was also tested one month and six months later, and tested negative both times ( id. 197-198, 205). According to plaintiff, throughout this period he experienced significant stress and anxiety ( id. at 228). Plaintiff alleges that his Crohn's disease was exacerbated as a result of the stress ( id. at 229-230).
Plaintiff stated that he abstained from having sexual relations with his wife for a couple of months after January 1, 2005 (Plaintiff Dep., at 210).
Richard White, a project engineer employed in Gillette's Quality Control Department, testified that he inspected the product on July 28, 2005 using a portable stereo microscope (White Dep., at 11-12, 16). White is certified as a quality control engineer by the American Society for Quality ( id. at 9). White concluded, with "100% degree of certainty," that the product that he inspected was counterfeit ( id. at 35). In other words, the product had the "Gillette" name on it, but was not manufactured by Gillette ( id.). At his deposition, White defined the terms "cartridge" and "dispenser" as follows:
Cartridge: "A cartridge is a shaving unit which typically consists of, in the case of a MACH 3 Turbo, a housing, three blades, two clips, a hood, and a lubrastrip. It is the component that attaches to the razor handle and is used for shaving"
Dispenser:"[A] dispenser is the plastic clear part. It consists of two halves and it has two slots where four cartridges can slide into"
( id. at 20-21). White based his conclusion on the fact that: (1) the dispenser has no cavity markings at all; (2) the gate on the top of the dispenser is recessed and has string attached; (3) the housing is silver and has a gate on the A side of the cartridge; (4) the hood has no cavity identification; (5) there are eight lobes on the "fin"; (6) the blade welds are clear in the middle; (7) the lubrastrip is green and white, and the cut-off is poor; (8) the hood is grey, while the housing has a slight green tint to the silver; (9) the blade edges showed considerable damage as well as debris under the microscope; and (10) the package has a sticker on it ( id. at 25, 27-28, 30, 39, 43, 44, 45, 51-52; see also Kenny Affirm., Exh. L). In response to Gillette's notice to admit, plaintiff admitted that the product inspected by White was the product that allegedly caused his injuries ( id., Exh. K).
The complaint alleges the following causes of action against Duane Reade and Gillette: (1) negligent manufacturing, design, research, development, testing, preparation, assembly, advertising, inspection, packaging, control, quality control, shipment, delivery, display, distribution, supervision, and sale; (2) strict products liability; (3) breach of express warranty; (4) breach of implied warranty, including the warranties of merchantability and fitness for a particular use; (5) negligent infliction of emotional distress; (6) loss of services, society, companionship, and consortium; and (7) gross negligence.
Duane Reade thereafter commenced a third-party action against Northside Development Co., Inc., a/k/a Northside Development, Inc. ("Northside") and TDL Sales (the predecessor to SDA). After Northside and TDL Sales failed to appear in this action, Duane Reade moved for a default judgment against these parties. On October 27, 2008, the court granted Duane Reade's application for a default judgment.
Thereafter, after Duane Reade learned that the razor cartridges were purchased from SDA, and not TDA Sales, Duane Reade commenced a second third-party action against SDA. The second third-party complaint alleges two causes of action: (1) indemnification and contribution; and (2) breach of warranty. SDA, in turn, asserted a cross claim for indemnification and contribution against Gillette.
SDA's cross claim states "[t]hat if plaintiff(s) sustained the damages alleged in the complaint through any negligence and/or breach of warranty and/or breach of contract and/or breach of indemnification agreement other than his own, such damages were caused by and resulted from the negligence and/or breach of warranty and/or breach of contract and/or breach of indemnification agreement of the above-named co-defendants.
That if the plaintiff(s) recover(s) a verdict against the answering defendant(s) for the damages alleged in the complaint, such liability will have been caused by the negligence and/or breach of warranty and/or breach of contract and/or breach of indemnification agreement of the above-named co-defendants" (SDA's Answer, at 5).
On June 1, 2009, in view of White's testimony that the product was counterfeit, plaintiffs discontinued the action as against Gillette (Kenny Affirm., Exh. O). Duane Reade also agreed to withdraw its cross claim against Gillette ( id., Exh. P). However, SDA refused to withdraw its cross claim asserted against Gillette. In a letter dated June 1, 2009, counsel for SDA stated that, without the blades plaintiff discarded, there was ". . . no way to determine whether the blades at issue were or were not manufactured by Gillette" ( id., Exh. R).
THE PARTIES' CONTENTIONS
Gillette
In support of its motion for summary judgment, Gillette argues that SDA's cross claim for indemnification and contribution should be dismissed because the unrefuted evidence establishes that the razor blade cartridges were counterfeit. Gillette contends that it owed no duty to plaintiff to protect against the dangers associated with counterfeits of its product. Gillette further maintains that it cannot be subject to liability for a design defect or failure. According to Gillette, a manufacturer need not warn consumers that its product is susceptible to criminal misuse, or even that certain products may be more susceptible to tampering and/or counterfeiting. Gillette also argues that it also cannot be subject to liability for breach of implied warranties, since any unfitness of the product cannot be attributed to Gillette. Finally, Gillette argues that it cannot be liable for breach of an express warranty. In the complaint, plaintiffs failed to provide any specifics concerning the alleged warranties, including whether they were written or oral, or when or by whom they were made.
Additionally, Gillette requests costs and sanctions against SDA and/or its attorneys for frivolously continuing its cross claim despite unrefuted evidence that there is no basis for Gillette's liability.
Duane Reade
Duane Reade contends that plaintiffs' complaint should be dismissed for spoliation of evidence. Duane Reade argues that plaintiff discarded the actual razor cartridges that he claims were defective and contaminated, and allegedly carried blood-borne illnesses. It maintains that, as a result, Duane Reade cannot examine or test the razor blades to determine if they were defective, or carried any of the illnesses claimed by plaintiffs. Duane Reade further argues that it cannot examine the packaging to determine where the product was purchased. Duane Reade contends that, although it may be couched in different terms, plaintiffs' complaint is nothing more than an action for damages due to fear of contracting AIDS or other blood-borne illnesses. Furthermore, this incident is not a foreseeable consequence of any action by Duane Reade.
SDA
SDA contends that, although Gillette presents evidence that the razor cartridges were counterfeit, it has not offered any proof as to the procedures offered by Gillette in the distribution, packaging, or shipping of the product. SDA argues that there are questions of fact as to whether Gillette was responsible for the counterfeit blades entering the stream of commerce. For this reason, Gillette's request for sanctions must be denied. According to SDA's majority owner and president, Terry Feinberg, when SDA receives a shipment of Gillette products, they come in sealed packages; the packages are never opened by SDA (Feinberg Aff., ¶ 7). SDA merely sends the product on to retail stores and/or companies that specialize in acting as brokers for retail entities ( id.). SDA only purchases Gillette products from Gillette itself, not from any other entity ( id., ¶ 5).
Additionally, SDA argues that plaintiffs' complaint should be dismissed for spoliation of evidence. As argued by SDA, plaintiff was clearly aware or should have been aware of the priority of maintaining the razor blades that he ultimately discarded. Plaintiff consulted with an attorney on January 3, 2005 (a mere two days after the incident), and began researching blood-borne illnesses immediately after the incident. Plaintiff returned to Duane Reade two days after the incident to register a formal complaint. SDA further argues that plaintiffs' claim for damages is not actionable. SDA maintains that plaintiff has absolutely no proof that the offending blades were contaminated. The razor blades were examined and found to be counterfeit, not used. Most tellingly, plaintiff's fears were allayed to such an extent that he resumed unprotected sexual relations with his wife a mere two months after the date of the incident.
SDA contends that the second third-party complaint should be dismissed based upon laches. SDA points out that plaintiffs' alleged incident occurred on January 1, 2005. However, Duane Reade did not implead SDA until four years later. SDA is not in a position to defend itself, since all of its records are expunged after an 18-month period (Feinberg Aff., ¶ 8).
Plaintiffs
In opposition to the motions by SDA and Duane Reade, plaintiffs argue that it cannot be reasonably inferred that any spoliation remedy is warranted in this case. Plaintiffs contend that there is nothing unusual about throwing away used razor blades or wrappers after use. Plaintiffs submit an affidavit in which plaintiff states that, when he leaves the bathroom, as a matter of course, he brings the trash to the garbage bin in his kitchen (Plaintiff Aff., ¶ 17). He states that on Saturday, January 1, 2005, he placed the garbage bag from the kitchen at the curb ( id., ¶ 18). Plaintiffs also note the following: (1) Duane Reade and Gillette have inspected the product at issue; (2) SDA has been advised that the product is available for non-destructive inspection, but has opted not to inspect the product; (3) an expert report was exchanged on behalf of Gillette from one inspection of the product; (4) photographs of the product were taken during the inspection; (5) plaintiff has the receipt for the product purchased at the Duane Reade store ( id., Exh. A); (6) the product was produced at two depositions held in this matter; (7) the product remains available to defendants for non-destructive inspection; (8) the product remains available to be produced at the depositions of Duane Reade and SDA; and (9) when plaintiff spoke with the representative from Duane Reade, she only requested one unused blade for testing, but did not request packaging, receipts, or the used blades.
Further, plaintiffs argue that Mr. O'Sullivan is claiming physical injuries, not merely emotional injuries, since his Crohn's disease was exacerbated as a result of this occurrence. Mrs. O'Sullivan was in the "zone of danger" because she was present at the time of the occurrence, and sustained emotional damages from witnessing the incident.
DISCUSSION
I. The Motions for Summary Judgment
On a motion for summary judgment, the movant must establish its claim or defense "sufficiently to warrant the court as a matter of law in directing judgment in [its] favor" (CPLR 3212 [b]). The movant on a motion for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, [by] tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v Prospect Hosp., 68 NY2d 320, 324). Once the movant has made a prima facie showing, the burden shifts to the motion's opponent to lay bare its evidentiary proof and present a genuine, triable issue of fact ( id.; see also Mazurek v Metropolitan Museum of Art , 27 AD3d 227 , 228 [1st Dept 2006]). "[I]ssue-finding, rather than issue-determination, is key" ( Shapiro v Boulevard Hous. Corp. , 70 AD3d 474 , 475 [1st Dept 2010], citing Insurance Corp. of NY v Central Mut. Ins. Co. , 47 AD3d 469 , 472 [1st Dept 2008]).
A plaintiff injured by an allegedly defective product may proceed on four theories: (1) negligence; (2) strict products liability; (3) breach of express warranty; and (4) breach of implied warranty ( see Voss v Black Decker Mfg. Co., 59 NY2d 102, 106).
To establish a claim of negligence, the plaintiff must show that the defendant owed a duty of care to the plaintiff, breach of that duty, that such breach was the proximate cause of the resulting injury, and actual loss, harm or damage ( Baptiste v New York City Tr. Auth. , 28 AD3d 385 , 386 [1st Dept 2006]; Merino v New York City Tr. Auth., 218 AD2d 451, 457 [1st Dept], affd 89 NY2d 824).
In strict products liability, the plaintiff may assert that the product was defectively manufactured, defectively designed, or that there were inadequate warnings regarding the use of the product ( Voss, 59 NY2d at 107). A "defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce" ( Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479, citing Restatement of Torts 2d § 402A; see also Yun Tung Chow v Reckitt Colman, Inc. , 69 AD3d 413 , 414 [1st Dept 2010]). In order to recover, the plaintiff need only demonstrate that the product was defective, and that the defect was a substantial factor in causing the plaintiff's injuries ( Wheeler v Sears Roebuck Co. , 37 AD3d 710 , 711 [2d Dept 2007]). One who sells a defective product "is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property . . ." (Restatement of Torts 2d § 402A).
The Uniform Commercial Code ("UCC"), as adopted in New York, provides that "[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise" (UCC 2-313 [a]). On a claim for breach of express warranty, the plaintiff must show that there was an "affirmation of fact or promise by the seller, the natural tendency of which [was] to induce the buyer to purchase,' and that the warranty was relied upon" ( Schimmenti v Ply Gem Indus., 156 AD2d 658, 659 [2d Dept 1989], quoting Friedman v Medtronic, Inc., 42 AD2d 185, 190 [2d Dept 1973]; see also Schneidman v Whitaker Co., 304 AD2d 642, 643 [2d Dept 2003]).
As noted by Gillette, plaintiff has failed to allege any affirmation of fact or promise made by defendants. Therefore, although the court dismisses this cause of action for lack of actionable damages ( see infra), this cause of action must also be dismissed for legal insufficiency ( see Valley Cadillac Corp. v Dick, 238 AD2d 894 [4th Dept 1997]).
UCC 2-314 provides that a warranty of merchantability is implied in a contract for the sale of goods if the seller is a merchant with respect to goods of that kind. To be merchantable, the goods must be, among other things, "fit for the ordinary purposes for which [such] goods are used" (UCC 2-314 [c]). "To establish that a product is defective for purposes of a breach of implied warranty of merchantability claim, a plaintiff must show that the product was not reasonably fit for its intended purpose, an inquiry that focuses on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners," and that the defect was a proximate cause of the plaintiff's injury ( Wojcik v Empire Forklift, Inc. , 14 AD3d 63 , 66 [3d Dept 2004] [internal quotation marks and citation omitted]). "As a practical matter, the distinction between the defect concepts in tort law and in implied warranty theory may have little or no effect in most cases" ( Denny v Ford Motor Co., 87 NY2d 248, 262, rearg denied 87 NY2d 969).
Here, plaintiff seeks to recover for the exacerbation of his Crohn's disease as a result of the stress and anxiety from the incident, not for the minimal nicks and cuts to his face caused by the counterfeit blades (Plaintiff's Affirm. in Opposition, at 14). The court must, therefore, determine whether plaintiff may recover for this emotional distress and accompanying physical manifestations.
Generally, a person "to whom a duty of care is owed . . . may recover for harm sustained solely as a result of an initial, negligently-caused psychological trauma, but with ensuing psychic harm with residual physical manifestations" ( Johnson v State of New York, 37 NY2d 378, 381). When there is a duty owed by a defendant to a plaintiff, breach of that duty resulting in emotional harm is compensable even though no physical injury occurred ( Kennedy v McKesson Co., 58 NY2d 500, 504). However, in order to recover damages for pure emotional distress, the plaintiff must produce "some guarantee of genuineness" ( Ornstein v New York City Health Hosps. Corp. , 10 NY3d 1 , 6 [internal quotation marks and citation omitted]).
Recovery for emotional distress may be had in strict products liability, negligence, and warranty, subject to the rules on emotional distress claims (2 Madden Owen on Prod. Liab. § 17:8 [3d ed]).
New York measures "AIDS phobia" claims (and similar disease phobia claims) under an objective standard. Under this standard, a plaintiff who is not HIV positive does not have a viable claim unless there is proof of "actual exposure," i.e., (1) some injury, impact, or other plausible mode of transmission whereby HIV contamination could, with reasonable likelihood, have entered the plaintiff's bloodstream; and (2) evidence that the allegedly transmitted blood or fluid was in fact HIV positive ( id.; Fosby v Albany Mem. Hosp., 252 AD2d 606, 607 [3d Dept 1998]; McLarney v Community Health Plan, 250 AD2d 310, 312 [3d Dept 1998], lv dismissed 93 NY2d 848; Bishop v Mount Sinai Med. Ctr., 247 AD2d 329, 331 [1st Dept 1998]; Montalbano v Tri-Mac Enters. of Port Jefferson, 236 AD2d 374, 375 [2d Dept 1997]; Brown v New York City Health Hosps. Corp., 225 AD2d 36, 45 [2d Dept 1996]). "In the absence of proof of a likelihood of contracting AIDS, recovery for emotional distress will be denied as overly speculative and remote" ( Kaufman v Physical Measurements, 207 AD2d 595, 596 [3d Dept 1994]).
In order to recover for other diseases, the plaintiff must show that the fear of developing the disease was a reasonable result of defendants' wrongful conduct ( see Atkins v Exxon Mobil Corp. , 9 AD3d 758 , 759 [3d Dept 2004] [to recover for fear of a future illness, the plaintiff must allege actual exposure to the feared cause and some present physical manifestation of an ill effect the cause has had on the plaintiff]; Wolff v A-One Oil, 216 AD2d 291, 291-292 [2d Dept 1995], lv dismissed 87 NY2d 968 [1996] [fear of developing cancer must have a rational basis])
In Brown ( 225 AD2d 36, supra), a pediatric nurse at a hospital was stuck with a needle left in a crib of an HIV-positive infant. There, the Court held that the nurse could maintain a cause of action for negligent infliction of emotional distress, since the plaintiff presented evidence that HIV was present in the needle and that there was a scientifically-accepted method of transmission of the virus ( id. at 48). In Lombardo v New York Univ. Med. Ctr. ( 243 AD2d 688 [2d Dept 1997]), the plaintiff, an undertaker, claimed that he cut his finger on an exposed piece of plastic tubing negligently left in the body of a man who had AIDS. In reversing the trial court, the Second Department stated that "[a]side from the plaintiff's unsupported surmise, there is no evidence that any sharp object was left protruding from the body of the deceased, or that whatever cut the plaintiff was contaminated with the blood of the deceased" ( id. at 689). In Kaufman ( 207 AD2d 595, supra), a postal worker who was pricked by a hypodermic needle protruding from an envelope was unable to recover for negligent infliction of emotional distress, where he tested negative for AIDS on five separate occasions over an extended period of time and where neither the blood specimen nor the individual had tested positive for HIV ( id. at 596).Courts have developed an exception where there are "special circumstances" sufficient to guarantee the genuineness of the claim ( see e.g. Fosby, 252 AD2d at 608 [defendant's unexplained refusal to provide plaintiff with any information regarding prior use of needle established sufficient "special circumstances"]; Schulman v Prudential Ins. Co. of Am., 226 AD2d 164 [1st Dept 1996] [erroneous report of HIV finding following blood analysis constituted "special circumstances"]).
Here, aside from plaintiff's speculation, there is no evidence that the counterfeit blades were contaminated with HIV or carried any other blood-borne illnesses. Plaintiff was tested for blood-borne diseases, and tested negative on three separate occasions over a six-month period (Plaintiff Dep., at 205). It is also undisputed that Gillette tested the remaining razor cartridges from the package, and that they were found to be counterfeit, not used (White Dep., at 35). Since plaintiff discarded the razor cartridges he allegedly used and cut himself with (Plaintiff Dep., at 150), he cannot show that these blades carried HIV or any other blood-borne illnesses. Nor are there are any "special circumstances" to guarantee the genuineness of the claims. Given plaintiff's lack of proof of "actual exposure," plaintiff cannot recover for his emotional trauma and stress stemming from his fear of contracting these diseases.
Nor can plaintiff's wife recover on her negligent infliction of emotional distress claim. To prevail on a negligent infliction of emotional distress claim, based on a "zone of danger" theory of liability, the plaintiff must establish that she suffered serious emotional distress that was proximately caused by the observation of a family member's death or serious injury while in the zone of danger ( Bovsun v Sanperi, 61 NY2d 219, 231; Stamm v PHH Veh. Mgt. Servs., LLC , 32 AD3d 784 , 786 [1st Dept 2006], lv denied 8 NY3d 814; DeCintio v Lawrence Hosp., 299 AD2d 165, 166 [1st Dept 2002], lv dismissed in part and denied in part 100 NY2d 549). The emotional injury must be not only "serious and verifiable" but also "tied, as a matter of proximate causation, to the observation of the serious injury or death of the family member and such injury or death must have been caused by the conduct of the defendant" ( Bovsun, 61 NY2d at 231-232). Here, Mrs. O'Sullivan did not observe her husband's serious injury or death while in the "zone of danger" — she ran upstairs to where her husband was shaving after he "freaked out" (Plaintiff Dep., at 152-153). Therefore, Mrs. O'Sullivan's cause of action for negligent infliction of emotional distress must be dismissed ( see Stamm, 32 AD3d at 786).
In view of the above, the derivative claims, third-party claims and cross claims for indemnification, contribution, and breach of warranty must also be dismissed.
II. Gillette's Request for Sanctions against SDA and/or its Counsel
The court denies Gillette's request for costs and sanctions against SDA and its counsel. Although Gillette contends that SDA frivolously failed to withdraw its cross claim, Gillette has failed to demonstrate any basis for sanctions. Frivolous conduct has been defined as: "(1) . . . completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) . . . undertaken primarily to delay or prolong the resolution of the litigation, or to harass, or maliciously injure another; or (3) . . . asserts material factual statements that are false" ( 22 NYCRR 130-1.1 [c]). SDA points out that White's testimony does not eliminate the possibility that the counterfeit blades could have entered the stream of commerce from a Gillette facility. Thus, Gillette has failed to demonstrate that SDA's refusal to withdraw its cross claim was completely without merit, or designed to harass or maliciously injure Gillette ( see Alter v Levine , 57 AD3d 923, 925 [2d Dept 2008] [court properly denied request for sanctions for failing to withdraw counterclaim]).
CONCLUSION AND ORDER
Based upon the foregoing, it is
ORDERED that the motion (sequence number 002) of defendant The Gillette Company for summary judgment dismissing the cross claim by second third-party defendant Supermarkets Distributors of America, Inc. is granted and the cross claim is dismissed with costs and disbursements as taxed by the Clerk of the Court; and it is further
ORDERED that the request for costs and sanctions of defendant The Gillette Company against Supermarkets Distributors of America, Inc. and/or its counsel is denied; and it is further
ORDERED that the motion (sequence number 003) of second third-party defendant Supermarkets Distributors of America, Inc. for summary judgment dismissing the complaint is granted and the complaint is dismissed with costs and disbursements as taxed by the Clerk of the Court; and it is further
ORDERED that the motion (sequence number 004) of defendant/third-party plaintiff/second third-party plaintiff Duane Reade, Inc. for summary judgment dismissing the complaint and all cross claims and counterclaims asserted against it is granted, and the complaint and all cross claims and counterclaims asserted against it are dismissed with costs and disbursements as taxed by the Clerk of the Court; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.