A 245-pound man injured by the collapse of a chaise lounge cannot sue the retailer that sold him the chair because it came with a label warning that the chair should not be used by anyone weighing more than 225 pounds, a New York judge has ruled.

New York Supreme Court Judge William LaMarca, in Kovit v. CVS, 007503-05, granted summary judgment in favor of CVS and its purchasing agent and dismissed a claim that a Woodmere, N.Y., CVS store been negligent in selling him the chair. “Here there is ‘no evidence from which a reasonable person might conclude that the defendants had either actual or constructive knowledge of the alleged defect or that the alleged defect existed at the time the product was sold,’” LaMarca said. Moreover, the judge suggested that it may have been Charles Kovit’s own conduct in not paying heed to the warning label, rather than any defect, that caused his injuries. First, LaMarca denied defendants’ motion to dismiss the claim, on the ground of spoliation of the evidence, because the chair was not produced for their inspection. At an examination before trial, Kovit testified that renovations had been done at his house and that the chair might have been thrown out because it was “no longer around.” His wife recalled that she had removed a label after the accident and had given it to her husband’s attorney. The label also was not produced. Nevertheless, LaMarca concluded that “The defendants failed to demonstrate that the plaintiff intentionally attempted to hide or destroy evidence or that they ‘negligently disposed of any key physical evidence after being placed on notice that it might be needed for future litigation.’” However, the judge agreed that the negligence complaint against CVS should be dismissed. The judge noted that a specimen “warning” label attached to some of the chaise lounges sold by CVS read as follows: “Do Not Exceed The Maximum Chair Weight Load of 225 Lbs As The Chair May Collapse, Which May Result In Serious Personal Injury And/Or Property Damage.” In his deposition, Kovit testified that after his accident his wife told him about a warning label that was attached to the chaise lounge and admitted that the label reflected a weight limitation. Kovit’s hospital record indicates that he weighed 245 pounds when he was treated for his injury and he, himself, admitted that he weighed between 240 and 245 pounds at the time of his accident. LaMarca wrote, “Thus, it is clear that there was a warning on the chaise that plaintiff used that instructed that it was not to be used by anyone who weighed more than 225 pounds and it is equally clear that plaintiff’s weight exceeded that limit. In light of this defendants have established that the ‘accident was not necessarily attributable to a defect’ thereby shifting the burden to plaintiff to produce direct evidence of a defect, which plaintiff has utterly failed to do.” CVS was represented by Nicholas P. Otis of the law office of Mitchell J. Devack in East Meadow, N.Y. He said that he thought that the spoliation claim was as strong as the argument the judge accepted. Kovit was represented by the Manhattan-based firm of Lieber & Gary, which did not return a call for comment.