SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
Present:
HON. DANIEL PALMIERI
Acting Justice Supreme Court
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TONY RODRIGUEZ,
TRIAL TERM PART: 45
INDEX NO.: 9420/07
Plaintiff,
-against-
PRINTCO INDUSTRIES, PRINTCO
INDUSTRIES LLC and INDUSTRIAL
ENGRAVING & MANUFACTURING CORP.,
FMC CORPORATION and HUDSON SHARP,
Defendants.
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HUDSON-SHARP MACHINE CO.,
Third-Party Plaintiff,
-againstINDUSTRIES ENGRAVING & MANUFACTURING
CORPORAITON and N.E.W. PUMPS, INC.,
Third-Party Defendants
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PRINTCO INDDUSTRIES, PRINTCO INDUSTRIES,
LLC,
Fourth-Party Plaintiffs,
-againstTOTAL PLASTIC PACKAGING, PLASTIC
PACKAGING and PLASTIC PACKAGING
TECHNOLOGY,
Fourth-Party Defendants.
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MOTION DATE:11-20-09
SUBMIT DATE:3-22-10
SEQ. NUMBER - 007
& 008
The following papers have been read on this motion:
Notice of Motion, dated 10-22-09..........................................1
Notice of Motion, dated 10-28-09..........................................2
Affirmation in Opposition, dated 2-11-10.............................3
Reply Affirmation, dated 3-5-10............................................4
Reply Affirmation, dated 3-16-10..........................................5
Motion by defendants Printco Industries and Printco Industries, LLC (hereafter
collectively referred to as "Printco"), and the motion by defendants FMC
Corporation and Hudson-Sharp Machine Co (hereafter collectively referred to as
"FMC"), for summary judgment dismissing the complaint are both denied.
Background
On February 18, 2005, plaintiff was cleaning printing plates on a printing
press when his right hand was pulled into the press between the rollers and the
drum, and injured. At the time of the injury the machine was on, but plaintiff had
reduced the speed to a stopped position. He testified that this was the way he was
taught to clean the plates.
The subject machine, identified as a Flexograff 706 printing press, was
owned by plaintiff’s employer, Uniflex Holding Inc. ("Uniflex"), and manufactured by
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FMC in 1967. The ink-transfer system originally installed included ink pans that
were intended to act as a guard to protect an operator from putting his fingers into
that part of the machine where plaintiff’s hand was injured, and thereby reduce the
risk of injury. However the original ink pans had been replaced by a "doctor blade"
system manufactured by Printco. The "doctor blade" system came with its own
guard to protect an operator from putting his hand into the machine, but at the time
of plaintiff ’s injury, the guard had been removed.
Plaintiff had worked at Uniflex for approximately four or five years before he
was injured, and he had approximately two years of experience working on the
subject printing press. It is unclear at what point the guards for the "doctor blade"
system were removed. The printing press was equipped with a manual wheel to turn
the plates to facilitate cleaning.
Defendants’ Request for Preclusion of the Erlich Affidavit
Before this Court can reach the substance of the parties’ arguments, the
Court must consider defendants’ contention that the affidavit of plaintiff’s expert,
3
Harry Erlich, may not be considered. Defendants argue that because they were
never provided with responses to their request to plaintiff for discovery of expert
witnesses pursuant to CPLR 3101(d), and the note of issue has already been filed,
Erlich’ s affidavit must be precluded. They rely upon Construction by Singletree,
Inc.,v Lowe 55 AD3d 861 (2d Dept. 2008); DeLeon v State of New York, 22
AD3d 786 (2d Dept. 2005), lv app den 7 NY3d 701 (2006), and Safrin v DST
Russian & Turkish Bath, Inc., 16 AD3d 656 (2d Dept. 2005).
Defendants cite the general rule that a court, in its discretion, may reject the
affidavit of an expert, where one party has failed to identify the expert in pretrial
disclosure, filed a note of issue and certificate of readiness, and then submitted the
affidavit solely to oppose a motion for summary judgment. Where the party seeking
preclusion is "unaware" of the purported expert, preclusion may be warranted. Yax
v Development Team, Inc., 67 AD3d 1003 (2d Dept. 2009); King v Gregruss
Management Corp., 57 AD3d 851 (2d Dept. 2008), lv app den 13 NY3d 707
(2009); see generally Construction by Singletree, DeLeon, and Safrin.
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However, there is an exception to the rule. Where there is no evidence that
the opponent intentionally or wilfully failed to disclose the identity of his expert
witness, and no prejudice to the movant has been shown, the court may consider
the expert’s affidavit despite the failure to serve a notice pursuant to CPLR 3101.
Browne v Smith, 65 AD3d 996 (2d Dept. 2009); Simpson v Tenore and
Guglielmo, 287 AD2d 613 (2d Dept. 2001). Where, as here, the plaintiff essentially
complied with the requirements set forth in CPLR 3101(d) because his expert was
deposed by defendants and discussed in plaintiff’s Response to Defendant’s First
Set of Interrogatories (see Exhibit G to Printco’s moving papers), there can be no
showing of a willful failure to disclose or prejudice to the movant.
See generally
Cruz v Gustitos, 51 AD3d 963 (2d Dept. 2008). Here defendants cannot meet the
requirement of the general rule, namely, that they were "unaware" of the expert.
Consequently, preclusion is denied. The Court will consider the affidavit of plaintiff’s
expert.
Summary Judgment and Products Liability
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Summary judgment is the procedural equivalent of a trial.
S.J. Capelin
Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 341 (1974). It is a drastic remedy
that should only be granted if there are no triable issues of fact. Pearson v Dix
McBride, LLC, 63 AD3d 895 (2d Dept. 2009); Dykeman v Hecht, 52 AD3d 767,
769 (2d Dept. 2008). It is not the court’s function on summary judgment to assess
credibility. Ferrante v American Lung Assn., 90 NY2d 623, 631 (1997); S.J.
Capelin Assoc.
The proper standard to be applied in a products liability case is whether the
product, as designed, was not reasonably safe. Voss v Black & Decker Mfg. Co.,
59 NY2d 102, 108 (1983). A manufacturer is not liable for injuries caused by
substantial alterations to the product that render the product defective or unsafe.
Robinson v Reed-Prentice Div. of Package Machinery Co., 49 NY2d 471, 479
(1980). However, where a product is purposefully manufactured to permit its use
without a safety feature, a plaintiff may recover for injuries incurred after the safety
feature has been removed. Lopez v Precision Papers, Inc., 67 NY2d 871 (1986). A
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manufacturer also may be liable for a post-sale failure to warn.
Kris v Schum, 75
NY2d 25 (1989). In addition, a manufacturer may be liable for failing to warn
against forseeable alteration of its product, Liriano v Hobart Corp., 92 NY2d 232
(1998) (manufacturer liability may exist under a failure-to-warn theory where there
were no warnings on a meat grinder, and safety guard had been removed).
The Motion by Printco
In its moving papers Printco argues that its "doctor blade" system was not
defective. Printco did manufacture safety guards for its "doctor blade" system, and
it did place warnings on those guards. It further seeks refuge behind its defense of
material alteration, and insists it was not forseeable that the "doctor blade" system
would be used without the safety guards that came with it. Printco also argues that
in any event, as a component-part manufacturer, it should not be responsible for
injuries caused by other parts of the machine, here the rollers.
The component-part claim is easily rejected. Printco’s reliance on Munger v
Heider Manufacturing Corp., 90 AD2d 645 (3d Dept. 1982) and Leahy v
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Mid-West Conveyor Co., Inc., 120 AD2d 16 (3d Dept. 1986), lv app den 69 NY2d
606 (1987) is misplaced. Those cases provide that where a component-part
manufacturer produces a product in accordance with the design, plans, and
specifications of the buyer, the component-part manufacturer will not be liable to the
buyer’s employee in a strict liability action. Here, there is no proof that Printco
used a design, plans, or specifications by Uniflex in its production of the "doctor
blade" system.
Plaintiff’s expert testifies that Printco’s warnings were defective because the
warnings were placed on the removable guards, and in fact the guards had been
removed prior to the injury. He states that any warning should have been placed
"directly onto the roller assembly housing of the doctor blade, not on the
guard"(Erlich affidavit par. 4). Mr. Erlich opines that Printco’s failure to provide
available and adequate warnings is a design defect and a cause of plaintiff’s injury.
Printco’s expert, Mr. Dreyer, in his reply affidavit, does concede that the
guard cannot be in place when cleaning occurs. Mr. Dreyer further admits that "it is
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generally known in the printing industry that guards are removed and sometimes not
reinstalled"(Dreyer affidavit, par. 13). Under these circumstances, Printco’s
defenses, of no defect and material alteration, do not apply in this case because the
guards and warnings on the doctor blade system were never meant to protect an
operator during cleaning, as they had to be removed for that process.
While it is
unclear how often cleaning was necessary, cleaning did take place. Based on these
facts, plaintiff’s claims against Printco for failure to warn and design defect present
triable issues of fact. Accordingly Printco’s motion for summary judgment must be
denied.
The Court must also reject Printco’s secondary argument, as repeated
frequently by Mr Dreyer, is that no warnings were necessary because the danger of
cleaning a printing press while it is running is so obvious. However, "the
fact-specific nature of the inquiry into whether a particular risk is obvious renders
bright-line pronouncements difficult, and in close cases it is easy to disagree about
whether a particular risk is obvious". Liriano at 242. For this reason, whether the
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risk was open and obvious presents a question for the jury.
Successor Liability for Printco
Printco Industries, LLC purchased the assets from Printco Industries Limited
in October of 2003 (Burkel transcript, pp. 16-18), but the LLC did not purchase any
debts or liabilities in the transaction. In general, a corporation that purchases the
assets of another corporation is not liable for the torts of its predecessor
Schumacher v Richards Sheer Co., Inc., 59 NY2d 239 (1983). Under these
circumstances, Printco LLC denies responsibility for the conduct of its predecessor,
Printco Industries Ltd, in manufacturing the subject "doctor blade" system.
Exceptions to this general rule exist where (1) the successor expressly or
impliedly assumes the predecessor ’s liability; (2) there was a consolidation or
merger of the two corporations, (3) the second corporation was merely a
continuation of the first, or (4)the transaction was fraudulently executed to escape
liability. Schumacher at 244; Matter of AT&S Transportation LLC v Odyssey
Logistics & Technology Corp., 22 AD3d 750, 752 (2d Dept. 2005); Hansen v
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Filtron Mfg. Co. Inc., 282 AD2d 433, 434 (2d Dept. 2001). Plaintiff rejects
Printco’s denial of liability, and claims that a de facto merger took place.
The hallmarks of a de facto merger are the “ ‘continuity of ownership;
cessation of ordinary business and dissolution of the predecessor as soon as
possible; assumption by the successor of the liabilities ordinarily necessary for the
uninterrupted continuation of the business of the acquired corporation; and a
continuity of management, personnel, physical location, assets, and general business
operation’ ”.
Matter of AT&S Transportation LLC at 752, quoting Fitzgerald v
st
Fahnestock & Co, 286 AD2d 573, 574 (1 Dept. 2001).
In this case the new Printco Industries, LLC took over the address of the
predecessor corporation, and purchased its customer list, good will, telephone
numbers, and web site. Indeed, the web site for the new LLC provides a statement
that the company was founded in 1983, yet the asset purchase did not take place
until twenty years later in 2003 (see Burkel transcript, pp 77-78). Plaintiff alleges
that the two entities have some of the same owners and most of the same
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employees. There is no evidence that the predecessor continued operations. Based
on the foregoing, a triable issue of fact is presented as to whether a de facto
merger took place.
Hoover v New Holland North America, Inc, 71 AD3d 1593 (4
th
th
Dept. 2010); Meadows v Amsted Industries, Inc., 305 AD2d 1053 (4 Dept.
2003).
The Motion by FMC
FMC states that any claim of design defect must be dismissed because of
the significant alteration to the machine affecting the area where plaintiff put his
hand. FMC further argues, inter alia, it had no duty to warn of dangers created by
alterations to their machine that were neither known nor forseeable.
In opposition Mr. Erlich opines that FMC failed to provide complete and
adequate guarding for the subject printing press because no permanent warnings
were placed directly on a machine that FMC knew was intended for long-term use.
Erlich testifies that FMC should have known that parts, such as the ink pans would
be replaced over the life of the machine, and that only permanent signage would
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alert users to the “in-running nip hazard” presented. Erlich argues that issues of
machine modification and substantial alteration do not relieve FMC of its
responsibility to provide adequate warnings, and that the absence of adequate
warnings was a cause of plaintiff’s injury.
Based upon Erlich’s opinion, the Court notes that plaintiff has dropped its
design defect claims against FMC, and as to this defendant relies totally on its
failure to warn claims.
FMC argues that permanent warnings affixed to the machine were not
necessary because plaintiff already understood the danger of placing his hand where
he did. While plaintiff did testify that it is "dangerous" to put his hand in the
machine while it is running (Rodriquez transcript, p. 84), he was taught to reduce
the speed to the point where the rollers and the cylinder were totally stopped
(Rodriquez transcript, pp. 81-88). Under these circumstances, there is no showing
that plaintiff understood the danger of placing his hand in the machine while it was
running but the speed was reduced. Furthermore, plaintiff’s lack of English is
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inconclusive as many warnings today use graphic symbols to depict danger.
The application of Robinson v Reed-Prentice Div. of Package Mach. Co. to
FMC turns on the nature of the modification /alteration to the subject printing press.
Here, the ink pans were replaceable, and in fact were replaced by the "doctor
blade" system. On this record, there is no evidence that installation of the "doctor
blade" system resulted in the destruction of the functional utility of a key safety
feature or abuse of the product. For this reason Robinson is inapposite.
See also
Mackney v Ford Motor Co., 251 AD2d 298 (2d Dept. 1998).
The issue presented by plaintiff’s claims against FMC is whether the subject
printing press, as marketed with replaceable ink pans, was "not reasonably safe,"
absent a warning of the dangers of the in-running nip hazard, permanently affixed to
the machine. "Failure to warn liability is intensely fact specific," and indeed this is a
question of fact for the jury, Liriano at 243. Consequently, FMC ’s motion for
summary judgment dismissing the complaint must be denied.
This shall constitute the Decision and Order of this Court.
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ENTER
DATED: May 11, 2010
_____________________________
HON. DANIEL PALMIERI
Acting Supreme Court Justice
TO:
Thomas O’Malley, Esq.
Morelli Ratner, PC
Attorney for Plaintiff
950 3rd Avenue, 11th Floor
New York, NY 10022
Braff, Harris & Sukoneck
Attorneys for Printco Industries and Printco Industries, LLC
305 Broadway, Seventh Floor
New York, NY 10007
Lavin, O’Neil, Ricci, Cedrone & Disipio
Attorneys for the Defendants FMC Corporation and Hudson Sharp
420 Lexington Avenue, Ste. 2900
New York, NY 10170
Westerman Ball Ederer Miller and Sharfstein, LLP
By: William E. Vita, Esq.
Attorney for Fourth-Party Defendants
170 Old Country Road, 4th Floor
Mineola, NY 11501
Robert J. Walker, Esq.
Gallagher, Walker, Bianco & Plastaras, Esq.
Attorney for Third Party Defendant Industrial Engraving Corporation
98 Willis Avenue
Mineola, NY 11501
Brian Baggott, Esq.,
Shook, Hardy & Bason, LLP
2555 Grand Boulevard
Kansas City, Missouri 64108
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