Opinion
98-CV-0759E(Sr)
November 29, 2000
MEMORANDUM and ORDER
Plaintiff commenced this action in state court advancing claims sounding in negligence and strict products liability. Defendant removed the action to this Court December 2, 1998. Presently before this Court is defendant's motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons that follow, such motion will be granted in parL and denied in part.
For the purposes of this motion, it is helpful to outline the relevant procedural history of this matter. After filing the Notice of Removal and before filing its Answer, defendant moved December 4, 1998 for a more definite statement pursuant to FRCvP 12(e). By Memorandum and Order dated January 19, 1999, this Court denied such motion. Defendant then filed its Answer to the Complaint February 17, 1999. A FRCvP 16(b) scheduling order was not issued at that time, however, because issue had not been fully joined with regard to a previously named but now dismissed defendant. Such defendant was dismissed by Order dated December 16, 1999. Prior to this time, some discovery was conducted between the parties, including the deposition of plaintiff, defendant's request for admissions, defendant's service of interrogatories and defendant's request for production of documents. Plaintiff has apparently complied with all such discovery demands. Plaintiff, on the other hand, noticed a deposition of the defendant October 28, 1999 with such deposition to be conducted December 2, 1999. This deposition, however, did not take place inasmuch as "a dispute [allegedly] arose between the defendant's attorney and his former firm." Plaintiff's Mem. of Law at 2. New counsel was substituted for defendant by stipulation dated March 28, 2000. Defendant then filed the instant motion for summary judgment May 1, 2000. A scheduling order has yet to be issued.
As outlined in the Complaint and in the parties' submissions, plaintiff alleges that he was injured October 20, 1996 while employed by General Mills at its plant on Michigan Avenue in Buffalo, N.Y Particularly, he claims that, aher he was assigned to work on a production line which bagged, flattened, palletized and shrank wrapped bags of flour, his hand was caught in a "bag flattener" causing injury. McNamara Aff. ¶¶ 3-4; Complaint ¶¶ 5-6; Defendant's Statement ¶ 1. Plaintiff has further alleged that, on or about the same date, defendant was "in the process of installing the above described machine at the premises of General Mills, which machine had previously been sold to General Mills or was in the process of being sold to General Mills." Complaint ¶ 7.
The Complaint outlines three causes of action. The first cause of action alleges general neghgence — specifically that defendant's "agents, servants and/or employees, negligently and carelessly failed to utilize and engage appropriate guarding and caging which [it] had with [it] on the premises of General Mills, and [it] allowed the machine in question to be operated without such guarding and caging when, in the exercise of ordinary care, [it] should not have done so. Complaint ¶ 10. The accident in question, consequently, "occurred by reason the negligence, carelessness and recklessness of the [defendant] with no negligence on the part of the plaintiff contributing thereto." Complaint ¶ 12. Relatedly, the second cause of action alleges strict products liability based on design and manufacturing defects and the third cause of action alleges liability for defendant's failure to warn. Complaint ¶¶ 14-23.
In bringing the instant motion for summary judgment, defendant argues that plaintiff has "admitted he was injured by a *** machine bearing model no. A-2224-36 and serial no. 1347410588." Defendant's Mem. of Law at 3. According to defendant, however, such machine has been identified as one constructed by Portec, Inc. ("Portec machine") and further argues that "Buhler does not and did not manufacture, sell, distribute or install any products with the aforementioned model and serial numbers." Defendant's Statement ¶¶ 1-2. Consequently and because the "Portec machine is not a Buhler product and [defendant] has no connection to the Portec machine, liability cannot be imposed upon [defendant]." Defendant's Mem. of Law at 5. In response to such motion, plaintiff has filed an affidavit and application under FRCvP 56(f) stating that the noticed deposition of plaintiff and a deposition of plaintiff's employer must be completed before this Court can determine the existence vel non of any genuine issues of material fact. Plaintiff's Mem. of Law at 5.
Obviously, a threshold question that must be resolved prior to ruling on defendant's motion is whether summary judgment would be proper in light of plaintiff's desire for further depositions. Pursuant to FRCvP 56 (f), "[s]hould it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." In connection with an application under FRCvP 56(f), the party opposing the motion for summary judgment must explain, by affidavit,"(1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Meloff v. New York Life Ins. Co., 51 E3d 372, 375 (2d Cir. 1995) (citing Hudson River Sloop Clearwater Dept. of Navy, 891 F.2d 414, 422 (2d Cir. 1989)). "[D]enial of access to relevant information weighs in favor of the party opposing a motion for summary judgment." Burlington Coat Factory Wrhse. Corp. v. Esprit De Corp., 769 F.2d 919, 925 (2d Cir. 1985). "The nonmoving party should not be "railroaded' into his offer of proof in opposition to summary judgment." Trebor Sportswear Ce., Inc. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)). "The nonmoving party must have "had the opportunity to discover information that is essential to his opposition' to the motion for summary judgment." Trebor, at 511 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5 (1986)). Nonetheless, "the trial court may properly deny further discovery of the nonmoving party has had a fully adequate opportunity for discovery." Trebor, at 511.
As stated previously and as set forth in his papers, plaintiff argues that completion of the noticed deposition and a deposition of his employer, General Mills, is required to fairly determine the identification of the injury-causing product and to develop his allegation that negligence on the part of defendant is responsible for his injuries. Plaintiff's Mem. of Law at 3-4. Insofar as such covery pertains to plaintiff's first cause of action, plaintiff states that the "depositions were held in abeyance owing to difficulties encountered by the attorney for the defendant in connection with obtaining a substitution of attorney upon his departure from the law firm originally of record for the defendant." Rich, Esq., Aff. ¶ 8. Plaintiff offers no such explanation as to why a deposition has not been noticed with regard to his employer and the identification of the product in question. Plaintiff believes that, after both depositions have been completed, it "reasonably expects that genuine issues for trial will be framed upon determining the duties, actions, mission, and roles of the Buhler agents, servants and/or employees ***" and that the identification of the product in question will be determined. Id. ¶¶ 11-13.
Insofar as plaintiff argues that his negligence claims, as embodied in his first cause of action, should not be dismissed this Court agrees. Under the uncontested factual allegations made in plaintiff's papers — including those made by affidavit —, plaintiff has articulated sufficient justification as to why the issue of defendant's alleged negligence has not been adequately explored. Such deposition may very well show that defendant and/or its agents may have been negligent in supervising the installation of the Portec machine. Consequently, defendant's motion will be denied insofar as it seeks summary judgment on plaintiff's first cause of action. A ruling otherwise would be grossly unfair. Insofar as plaintiff seeks to avert summary judgment as to his strict products liability and failure to warn claims, however, this Court determines that sufficient reason has not been shown explaining why the deposition of plaintiff's employer has not occurred and will consider the claims accordingly.
It is axiomatic that, pursuant to FRCvP 56, summary judgment "shall be rendered" if the record reveals "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp., at 322. A factual dispute is material if its resolution "might affect the outcome of the suit under the governing law" and is considered genuine if it reasonably could be resolved in favor of either party, Anderson, at 248-250. Evidence submitted by the non-movant is to be believed and all justifiable inferences are resolved in that party's favor. Id. at 255. In order to defeat a properly supported motion for summary judgment, however, there must be evidence from which a jury could reasonably find for the non-movant. Id. at 252. Further and by direction of this Court's Local Rules of Civil Procedure ("LRCvP"), each summary judgment movant must annex to its motion "a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried." In turn, the party or parties opposing such motion must submit a similarly detailed statement of "the material facts as to which it is contended that there exists a genuine issue to be tried." Per LRCvP 56, facts properly submitted by the movant are "deemed admitted" except as specifically controverted by the non-movant's competing statement of the material facts.
The following facts are undisputed. Plaintiff was injured by a bag flattener manufactured by Portec, Inc., such machine bearing the model number A-2224-36 and serial no. 1347410588. Defendant's Statement ¶¶ 1-2. The Portec machine was neither manufactured, sold, distributed or designed by defendant nor does defendant have any connection or affiliation with Portec, Inc. Id. ¶¶ 3-6.
"In a products liability action, identification of the exact defendant whose product injured the plaintiff is, of course, generally required" and neither the facts of this case nor plaintiff presents a reason for deviating from the general rule. Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487, 504 (1989). "In order to obtain damages based upon a claim that the injuries sustained in an accident were due to a defective product, the plaintiff must show that the defendant manufactured, sold, or distributed the product in question." Lawless v. O'Brien, 636 N.Y So.2d 92, 93 (2d Dep't 1995). The undisputed proof submitted in this case in support of defendant's motion for summary judgment demonstrates that defendant played no role in designing, manufacturing, selling, distributing or designing the Portec machine. Accordingly, defendant cannot be held liable for strict products liability with regard to plaintiff's injuries. Further and because "[i]t is well settled that a plaintiff may recover in strict products liability or negligence for a manufacturer's failure to warn of the risks and dangers associated with the use of its product." — Bukowski v. Cooper Vision, Inc., 592 N.Y So.2d 807, 808 (3d Dep't 1993) —, plaintiff's failure to warn claim must similarly fail. Insofar as it is undisputed that defendant played no role in designing, manufacturing, selling, distributing or designing the Portec machine, defendant cannot be held liable for failing to warn of the dangers associated with products with which it has no connection.
Accordingly, it is hereby ORDERED that, insofar as plaintiff alleges strict products liability and failure to warn claims, defendant's motion for summary judgment is granted but in all other respects is denied.