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Dr. Milton Prystowsky, In His Own Right and As Executor of the v. Tgc Stores

August 11, 2011

DR. MILTON PRYSTOWSKY, IN HIS OWN RIGHT AND AS EXECUTOR OF THE ESTATE OF ROSE PRYSTOWSKY,
PLAINTIFFS,
v.
TGC STORES, INC., ADT SECURITY SERVICES INC., INVACARE CORPORATION, GOLDEN BROTERS, INC. D/B/A GOLDEN TECHNOLOGIES, PRIDE MOBILITY PRODUCTS CORP., AND JOHN DOES 4-10
DEFENDANTS.



The opinion of the court was delivered by: Wigenton, District Judge.

NOT FOR PUBLICATION

OPINION

Before the Court is defendant Pride Mobility Products Corp.‟s ("Pride" or "Defendant Pride") motion for an order certifying this Court‟s March 23, 2011 Order and record for interlocutory appeal pursuant to 28 U.S.C. 1292(b) and staying this action ("Motion"). Third party defendants Phoenix Mecano Inc. and Dewert Motorized Systems (collectively "Phoenix") also filed for certification to appeal and for stay of the proceedings ("Phoenix Motion"). Additionally, before the Court is defendant ADT Security Services, Inc.‟s ("ADT") motion to stay proceedings ("ADT‟s Motion").

For the reasons set forth below, the Court DENIES Defendant Pride‟s Motion and the Phoenix Motion. Defendant ADT‟s Motion is moot, as the motions for certification for interlocutory appeal are denied, and thus, a stay will not be granted.

BACKGROUND AND PROCEDURAL HISTORY

This matter arises from a fire that occurred at the residence of Rose and Milton Prystowsky at 4 Garden Place, Nutley, New Jersey on January 7, 2004. The fire destroyed the residence, took the lives of Rose Prystowsky and her home health aide, and left Dr. Milton Prystowsky seriously injured. As this matter has been fully briefed in detail and discussed on the record during oral argument, the background for this matter will only be briefly described for the purposes of this Motion.

During the initial stages of the investigation of the fire, the Essex County Prosecutor‟s Office informed Plaintiffs that the electric seat lift chair ("Lift Chair") in the living room was probably the origin and cause of the fire. (See Oral Arg. Tr. 29:22-30:6, Mar. 23, 2011.) The Lift Chair was allegedly purchased from TGC Stores. On January 5, 2006, Milton Prystowksy filed a complaint in the Superior Court of New Jersey, Essex County Law Division, against TGC Stores, Inc. ("TGC Stores") and ADT, and in accordance with N.J. Court Rule 4:26-4, named John Does 1 through 10 ("Complaint").*fn1

Plaintiffs in this matter are Stephen Prystowsky, Eric Prystowsky and Michael Prystowsky, the Executors of the separate estates of Dr. Milton Prystowksy and Dr. Rose Prystowsky ("Plaintiffs").

Steven Deutsch ("Deutsch"), the former CFO of TGC Stores, sent a letter to Plaintiffs‟ counsel dated November 3, 2006, in which he named Pride as one of three potential manufacturers of the Lift Chair (Invacare and Golden Technologies were also named in the letter). (Id. 7:4-7; 36:2-5.)

Plaintiffs claim that on February 2, 2007, Pride‟s representative denied that Pride sold to TGC Stores, effectively misleading Plaintiffs. (Id. 54:21-55:1, 66:22-67:3.) TGC Stores was apparently also doing business as "Take Good Care." (See id. 10:10-20.) Pride was familiar with doing business with Take Good Care (not TGC) and maintains that as a result, Pride did not find any documents pertaining to TGC Stores when they ran a search in response to Plaintiffs‟ inquiries. (See id. 36:25-37:10, 37:19-22, 38:22-24, 60:1-4.)

On October 10, 2007, Plaintiffs‟ motion to amend the Complaint to add Invacare was granted. (Id. 17:25-18:3.) On December 2, 2008, at Deutsch‟s deposition, Deutsch testified that TGC Stores obtained 70-80% of its lift chairs from Pride. (Id. 19:14-16, 49:17-22.) On January 5, 2009, Plaintiffs orally moved to amend the Complaint during a conference with Magistrate Judge Arleo. (See id. 50:12-17.) On January 9, 2009, Plaintiffs filed the Second Amended Complaint naming Pride and Golden Technologies as defendants. (Id. 51:2-13.)

Pride requested that Plaintiffs produce an original of a photograph that was discovered of Rose Prystowsky in the Lift Chair. (See id. 9:6-10.) In May 2010, Plaintiffs‟ counsel obtained the negative of the original photograph from the wife of Steven Prystowsky. (Id. 55:10-15.) Once enlarged, the photograph shows what appears to be part of the Pride logo. (Id. 66:2-4.)

On November 24, 2010, Defendant Pride filed a motion for summary judgment to dismiss Plaintiffs‟ claims of wrongful death ("Motion for Summary Judgment").*fn2 Oral argument in this matter was held on March 23, 2011 ...


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