must make a sufficient showing of each essential element of its case, on which it bears the burden of proof at trial).
For the reasons articulated above, defendant's motion for summary judgment on its second affirmative defense is denied because disputed questions of material fact exist regarding whether plaintiff intentionally misrepresented its claim. For the same reason, plaintiff's motion for partial summary judgment dismissing defendant's second affirmative defense is also denied.
Further, defendant's motion for summary judgment on its third affirmative defense is also denied because defendant has failed to show that plaintiff willfully refused to comply with its requests for documentation under the Policy. For the same reason, plaintiff's motion for partial summary judgment dismissing defendant's third affirmative defense is granted.
Further, defendant's motion for partial summary judgment dismissing plaintiff's claim for "Loss of Production" is granted. Defendant's motion for partial summary judgment limiting plaintiff's "Extra Expense" claim to the actual increased cost of production, striking plaintiff's claim for "management expediting expenses" and reducing the amount of plaintiff's claim for waste by the amount of income plaintiff received from its sale of waste is granted.
Finally, defendant's motion for an order compelling plaintiff to produce documentation, if it exists and has not already been produced, relative to the normal litho production at the Newark facility and the amount of waste sold by defendant is granted.
IT HEREBY IS ORDERED, that defendant's motion for summary judgment is denied.
FURTHER, that defendant's motion for partial summary judgment is granted.
FURTHER, that defendant's motion to compel production of documents is granted. Within thirty (30) days of the date of this Decision and Order, plaintiff shall produce, if it has not already done so, documentation regarding normal litho production at it Newark facility and sale of waste. If plaintiff fails to produce such documentation as ordered, it shall be precluded from using at trial, for the purpose of rebutting defendant's calculation of the amount of normal litho production at its Newark facility or the amount of waste sold by plaintiff, any documents responsive to defendant's requests that it has not produced.
FURTHER, that plaintiff's motion for partial summary judgment is granted in part and denied in part.
Dated: February 7, 1992
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge