Philadelphia Indem. Ins. Co. v. Amazon.com Inc.

MEMORANDUM AND ORDER INTRODUCTION   Plaintiff Philadelphia Indemnity Insurance Company (“Plaintiff”) brought this action against Defendants Amazon.com Inc. and Amazon.com LLC (“Amazon”) to recover damages resulting from an allegedly defective blender that caused property damage to Plaintiff’s subrogor, Niat Realty Corp. (“Niat Realty”). Plaintiff seeks to hold Amazon liable as a seller under theories of strict liability, negligence, and breach of warranty. Presently before the Court is Amazon’s motion for summary judgment dismissing Plaintiff’s claims.¹ BACKGROUND The following facts are undisputed unless otherwise noted. Amazon operates an online marketplace where, in addition to the products it retails itself, more than a million third-party sellers list products for sale. (Amazon’s R. 56.1 Stmt. [ECF No. 77-1] 1; Wright Decl. [ECF No. 77-4] 8.) In order to sell products on the marketplace, thirdparty sellers must assent to the Amazon Services Business Solutions Agreement (“BSA”), which includes, inter alia, Amazon’s fulfillment terms and allows a seller to avail themselves of Amazon’s services. (Wright Decl. 10; Pl.’s R. 56.1 Resp. [ECF No. 77-22] 58.) One such service is payment processing for sellers using the Amazon marketplace. (Amazon’s R. 56.1 Resp. [ECF No.77-25] 30.) Third-party sellers can also elect to partake in Amazon’s Fulfillment by Amazon (“FBA”) service, which “provides third-party sellers access to Amazon’s logistics network.” (Wright Decl.

19-20.) Third-party defendant A & K Sushi Corp. (“A & K Sushi”), a sushi restaurant, was a tenant at a strip mall owned by Plaintiff’s subrogor, Niat Realty, in the Hamlet of Wantaugh, New York. (Pl.’s R. 56.1 Resp. 49.) On April 30, 2016, Daniel Kim of A & K Sushi purchased a blender “via www.amazon.com” (the “blender”). (Amazon’s R. 56.1 Stmt. 3; Pl.’s R. 56.1 Resp. 51.) “Third-party sellers, not Amazon, developed the product detail page content for the blender that Mr. Kim purchased.” (Amazon’s R. 56.1 Stmt. 15.) Mr. Kim paid $199.89 for the blender by credit card, which Amazon collected. (Pl.’s R. 56.1 Resp.