Motion Notification Requirements

must the plaintiff notify the defendant in usdc of new york that the plaintiff intends to make a motion for judgment on the pleading

according to this motion should it be motion for summary judgment of judgment on the pleading:TABLE OF CONTENTS Pages STATEMENT OF THE CASE.............................................................................................................. * LEGAL ARGUMENT............................................................................................................................* Defective Design or Manufacturing..........................................................................................................* New York Products Liability Law.............................................................................................................* Negligence Law.........................................................................................................................................* Strict Product Liability..............................................................................................................................* Breach of Warranty....................................................................................................................................* Corporate Liability....................................................................................................................................* New York Civil Practice Laws and Rules.................................................................................................* Plaintiff's Reasons Why the Defense Counterclaim Falls Short...............................................................* ARGUMENT...........................................................................................................................................* Authentication.......................................................................................................................................... * Weight of Evidence on Internet...............................................................................................................* Defendant's Refusal to Answer Interragatories.........................................................................................* CONCLUSION........................................................................................................................................* Federal Rule of Evidence *[Judiciary Notice can be taken of Internet articles] ...............................................* i TABLE OF AUTHORITIES Pages MacPherson v. Buick Motor Co., * N.Y. * (*)............................................................................* Juarez v. Wavecrest Management Team Ltd., * N.Y.3d * (*). ….................................................* Denny v. Ford Motor Co., * NE 2d * (NY Ct. App. *)..............................................................* Loyda Castro v. QVC Network, Inc., * F.3d * (2d Cir. *).........................................................* Voss v. Black & Decker Manufacturing Co., * N.Y.2d * (*)........................................................* CutCo Industries, Inc. v. Naughton, * N.E.2d * (N.Y. *)............................................................* Deutsche Bank Sec., Inc. v. Montana Bd. of Investments, * N.Y.3d * (N.Y. *)...............................* Betty Dupree v. Ethicon, Inc. and Johnson & Johnson, No. 21cv2606 (DLC)........................................................* United States v. Bari, and Gucci America, Inc. v. Guess?, Inc.................................................................* ii UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------x JAMES GENCARELLI, Plaintiff Docket No: *:*-cv-* (AT) (SLC) -against- TOTO,USA, INC, et al CIVIL ACTION Defendants. Plaintiff's Motion for Judgment on the Pleading ----------------------------------------------------------x NOW, at all times throughout this proceeding, Plaintiff James Gencarelli shall be referred to as "Plaintiff," and Defendant TOTO USA, Inc shall be referred to as "TOTO." STATEMENT OF THE CASE On February *, *, in San Juan, Puerto Rico, plaintiff sustained injuries while utilizing the toilet facilities at the Marriott Hotel. During the act of flushing the “male urinal”, manufactured by the defendant, an unusual and forceful expulsion of water occurred, Ex.*. This forceful discharge struck the plaintiff's eyes, eventually, causing the development of a meibomian cyst, necessitating surgical removal, Ex. *. Scientific Medical opinions suggest that the water from urinals can cause bacterial injuries, Ex.*. Also See ( DKT. * Plaintiff's Sworn Affidavit). The case was initially brought before the Northern District of Georgia (“NDG”). Due to procedural matters with the NDG, the case was “Administratively Closed”. , plaintiff consequently petitioned for Venue to the Southern District of New York, Ex. *. The defendant asserts no culpability for the incident in question. Defense claim that the name “TOTO” was not associated with the urinal allegedly responsible for the damages, the defendant's “Manufactures Mark” is clearly present on their product, Ex.* Upon thorough examination of the plaintiff's submissions to the court, it will become evident that the defendant, TOTO, bears responsibility for the damages inflicted upon the plaintiff. Judiciary Notice can be taken of Internet articles ( p.*) *. LEGAL ARGUMENT The crux of this case lies in the defendant's liability for the injuries sustained by the plaintiff. Despite the defendant's assertions of innocence, the facts will demonstrate otherwise. The "male urinal" in question bears the defendant's name, providing clear evidence of TOTO's involvement in its manufacture. Furthermore, the occurrence of the malfunction resulting in the plaintiff's injuries establishes a prima facie case of product liability. These facts will be proven by documenatary evidence, sworn testimonty and the court's our Judicial judgment of the facts presented. Defective Design or Manufacturing In the matter of defective design or manufacturing, the plaintiff asserts that the urinal in question suffered from inherent flaws in its design or manufacturing process. Specifically, the plaintiff maintains that the urinal's design or manufacturing led to the expulsion of an excessive force of water during flushing, thereby causing injury to the plaintiff. This contention is centered on demonstrating that the product departed from its intended design or specifications, thereby rendering it defective and unfit for its intended purpose. Such defects, it is argued, pose a significant risk to users and are in violation of the duty of care owed by manufacturers under New York state personal injury and tort law. New York Products Liability Law New York has specific statutes governing product liability claims. The New York Product Liability Act (NYPLA), codified under Article *-A of the New York Civil Practice Law and Rules (CPLR), outlines the legal standards and procedures for product liability lawsuits in the state. See MacPherson v. Buick Motor Co., * N.Y. * (*), which established the doctrine of manufacturer liability for defective products, even in the absence of privity of contract between the manufacturer and the injured party. *. Negligence Law New York follows principles of negligence law, which hold manufacturers accountable for injuries caused by their negligent actions or failure to exercise reasonable care in designing, manufacturing, or distributing products. See Juarez v. Wavecrest Management Team Ltd., * N.Y.3d * (*). Strict Product Liability New York recognizes strict product liability, which allows plaintiffs to hold manufacturers liable for injuries caused by defective products without proving fault or negligence. New York Product Liability Law adheres to the principles of strict product liability, as established in the landmark case Codling v. Paglia, * NY 2d * (NY Ct. App. *). Denny v. Ford Motor Co., * NE 2d * (NY Ct. App. *), as quoted in Loyda Castro v. QVC Network, Inc., * F.3d * (2d Cir. *), further fortified the principles of strict liability in the state. Also See Voss v. Black & Decker Manufacturing Co., * N.Y.2d * (*). In this case, the New York Court of Appeals, the state's highest court, affirmed the adoption of strict product liability in New York. Breach of Warranty New York's Uniform Commercial Code (UCC), specifically Article *, governs warranties in the sale of goods, including products. Looking at New York CPLR § *, "A court may exercise such jurisdiction over persons, property, or status as might have been exercised, heretofore."see, CutCo Industries, Inc. v. Naughton, * N.E.2d * (N.Y. *) , Deutsche Bank Sec., Inc. v. Montana Bd. of Investments, * N.Y.3d * (N.Y. *). *. Corporate Liability The fact that the defendant's name is embedded on the urinal , it is paradigmatic that i caused the damafes to the plaintiff. Even if the defendant denies responsibility, their branding on the product suggests involvement in its manufacture. Corporate liability refers to the legal responsibility of a company for the actions or omissions of its employees or agents. The Uniform Commercial Code (UCC), Article *, adopted by New York, governs sales of goods and includes implied warranties of merchantability and fitness for a particular purpose, which are pertinent in product liability claims. See Betty Dupree v. Ethicon, Inc. and Johnson & Johnson, No. 21cv2606 (DLC); Voss v. Black & Decker Mfg., * NY 2d * (NY Ct. App. *) ("A plaintiff injured by a defective product may pursue a claim under New York Law for product liability" et seq.). New York Civil Practice Laws and Rules Additionally, the principles of Restatement (Second) of Torts Section 402A are generally embraced in New York. Furthermore, under Section *, the culpability of the claimant does not preclude recovery but rather reduces the damages proportionate to their culpability. Plaintiff's Reasons Why the Defense Counterclaim Falls Short In defendant's answer to complaint, ( Dkt ) defense denies that TOTO installed the plumbing system at the Marriott Hotel in Puerto Rico. But the defense does not state “ who installed the plumbing works”. TOTO advertisements implicitly states that they do their own “white gloves” installation Ex. * . Again, defense comes forward and declares that TOTO does not have a powerful flush. Advertisements by TOTO themselves, crumbles that theory, Ex. *. Defense states that “TOTO, Ltd is a separate and distinct company, “ not true”. Plaintiff research clearly presents that.....TOTO Ltd. and TOTO USA, Inc. are related but separate entities within the TOTO Group. TOTO Ltd. is the parent company based in Japan, while TOTO USA, Inc. is its subsidiary in the United States, Ex. *-8A-8B. *. The complaint clearly states TOTO, USA, INC. as the Defendant. “The Defendant's Assertion of a Strong Flush as a Selling Point." TOTO is surly not the perfect inviciable product in “toilet bowles” , they have many complaints , registed with the BBB, Ex. *- 9A. All toilets bowels in general may have this same problem (  applying the ejusdem generis canon), Ex. *. ARGUMENT The evidence presented unequivocally establishes the defendant's liability for the harm inflicted upon the plaintiff. Firstly, the malfunction of the "male urinal" manufactured by the defendant directly precipitated the plaintiff's injuries. The forceful discharge of water from the urinal, as outlined in the factual background, resulted in a traumatic impact on the plaintiff's eyes, necessitating medical attention and subsequent surgical intervention for the removal of a meibomian cyst. Medical opinions strongly affirm the potential for water expelled from a urinal to cause bacterial infection, further corroborating the causal link between the defendant's product and the plaintiff's injuries. Secondly, the presence of the defendant's name embedded on the urinal in question serves as undeniable evidence of TOTO's involvement in its production. Despite attempts to disavow any responsibility, the presence of the defendant's branding on the product undeniably establishes a direct link between TOTO and the malfunctioning urinal. This branding is not only indicative of the manufacturer's involvement but also imposes a duty of care and accountability upon TOTO regarding the safety and functionality of their product. The defendant's refusal to acknowledge fault is in direct contradiction with the circumstances of the case. Exhibits, particularly Exhibit *, clearly demonstrate the defendant's erroneous denial of its role as the manufacturer. This obstinate refusal underscores a blatant disregard for the plaintiff's rights and represents a failure to uphold the expected standards of accountability for manufacturers. In light of *. the foregoing, it is imperative that the defendant be held accountable for their actions, and not the plaintiff, and adjudicates in favor of the plaintiff accordingly. Inherent to certain endeavors, like manufacturing and distribution, are unavoidable risks. “When these risks materialize in harm to consumers, strict liability should attach to the manufacturer, irrespective of fault or intent. Such an approach places paramount importance on consumer protection and fosters accountability within the production process”, Oliver Wendell Holmes. Authentication ["§" p.* ] If the information presented on the internet is being offered as evidence, the party presenting it must typically establish its authenticity. This can be done through testimony or documentation confirming the source and accuracy of the information. Weight of Evidence on Internet Even if the information from the internet is admitted as evidence, the judge may still consider its reliability and relevance in determining its weight or credibility. Factors such as the source of the information, its accuracy, and any potential biases may be taken into account. Defendant's Refusal to Answer Interragatories The unwavering claim by the defense that their product, TOTO plumbing, did not cause the plaintiff's injury raises notable concerns. If they were genuinely certain about the innocence of their product, it begs the question why they avoided responding to the Interrogatories. The decision to withhold vital information undermines the credibility of their defense and hints at a lack of openness. Their hesitancy to participate in the discovery process compromises the integrity of the case and calls for closer examination. *. Conclusion Based on the preceding arguments and the pleadings on record, the Plaintiff respectfully requests that this Honorable Court grant judgment in favor of the Plaintiff as a matter of law, and determine an appropriate award of damages commensurate with the injury sustained by the plaintiff due to the actions of the defendant. The Plaintiff contends that the facts as presented and the relevant legal principles establish the absence of material issues in dispute, thereby justifying a judgment on the pleadings in favor of the Plaintiff. Dated: By: James Gencarelli / s / _______________________________ JAMES GENCARELLI * Broadway Saratoga Springs, New York * *.*.* ****gencarelli@gmail.com

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