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June 1, 1993

ROBERT ALLEN HART and SHERI HART, His Wife, Plaintiffs,
HYTROL CONVEYOR CO., INC., Defendant. HYTROL CONVEYOR CO., INC., Third-party Plaintiff, v. DEL LABORATORIES, INC., w/Division known as LaSalle Laboratories, Third-party Defendant.

The opinion of the court was delivered by: DAVID N. HURD

 United States Magistrate Judge



 This is a diversity case. The instant complaint was filed by plaintiffs on July 8, 1991, alleging that the defendant, Hytrol Conveyor Co., Inc. ("Hytrol"), designed and manufactured a conveyor belt in a defective and unsafe manner so as to cause personal injuries to the plaintiff, Robert Allen Hart. Sheri Hart sues derivatively. Hytrol filed an answer on August 5, 1991, denying the material allegations in the complaint and raising certain affirmative defenses. On December 16, 1991, Hytrol filed a third-party complaint against Del Laboratories, Inc. ("Del"), the employer of the plaintiff.

 After completion of discovery, Hytrol filed the present motion, with the appropriate documentation, for summary judgment seeking dismissal of the complaint pursuant to Federal Rules Civil Procedure 56. The plaintiffs filed affidavits and supporting documents in opposition. Del has taken no position. Oral argument was held on March 11, 1993, in Utica, New York. The court reserved decision.


 The plaintiff was employed as a maintenance mechanic by Del at its plant in Little Falls, New York. On December 7, 1990, he suffered the loss of the ring finger on his left hand, and fractures to his left arm, when his wedding ring was caught on a protruding screw that was affixed to a drive pulley on a conveyor belt system manufactured and sold by Hytrol, an Arkansas corporation located in Jonesboro, Arkansas. The conveyor belt system consisted of a 10' long table, in the middle of which there was a 3" wide conveyor belt. There were two pulleys to which the conveyor belt was connected - one at each end of the table. The drive pulley at the output end of the conveyor belt was a metal tube 28" long and 4" in diameter. At the time of its manufacture, the pulley was covered for 26" of its length with a black rubber covering, or belting (referred to as "lagging"). This lagging was attached to the pulley with adhesive tape and a number of drive screws. Each of the drive screws was 7/16" long. During the manufacturing process, holes were drilled into the drive pulley and the screws were driven through the lagging into the pulley.

 Del, which manufactures cosmetics, had specially ordered the conveyor system in 1977 from Reliance Equipment, Co., a distributor of Hytrol. Sometime in 1990, Dominick R. Arduini, a supervisor at Del, directed Del mechanics to replace the original 26" lagging installed by Hytrol with 5 1/2" red silicone lagging, the type commonly found on machines throughout the Del plant. The 5 1/2" lagging was secured to the drive pulley by punching it over the drive screws which remained from the manufacturing process. This new lagging left approximately 22" of the drive pulley without any lagging. As a result, a number of drive screws which originally secured the 26" lagging to the drive pulley were left protruding from the drive pulley without any lagging to cover them. Therefore, the lagging covered only 5 1/2" of the drive pulley near its center, underneath the 3" wide conveyor belt.

 On the day of the accident, plaintiff was working with other Del mechanics to make an assembly line longer by placing a bridge about 1' long and 4" wide between the Hytrol conveyor system to a labeling system. After the bridge was in place, part of the lagging and duct tape was rubbing against, and catching upon, the conveyor system. As a result, the 3" conveyor belt moved about l 1/2" off center. Plaintiff was able to get the conveyor belt back on center, however, he noticed that a piece of duct tape was sticking out as the drive pulley revolved. In an attempt to tear off the piece of duct tape, and while the conveyor was operating, plaintiff reached over the drive pulley and caught his wedding ring on an exposed drive screw. The revolving motion of the drive pulley then pulled plaintiff's finger into the conveyor system and he sustained the aforedescribed injuries.


 A motion for summary judgment may be granted only when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell, Partnership v. Medfit Int'l, Inc, 982 F.2d 686, 689 (1st Cir. 1993); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. In other words, a motion for summary judgment pursuant to Fed. R. Civ. P. 56 shall be granted only when the pleadings, evidence obtained through discovery, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Lang v. Retirement Living Pub. Company, 949 F.2d 576, 580 (2d Cir. 1991). Therefore, "summary judgment will not lie if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Thus, if the nonmoving party can not produce sufficient evidence to support the jury verdict, summary judgment is proper. Id. at 249. "In determining how a reasonable jury would decide, the Court must resolve all ambiguities and draw all inferences against the moving party." Lang, 949 F.2d at 580. However, when the moving party has met the burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Liberty Lobby, 477 U.S. at 247-48. At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id. "The judge's function is not to weigh the evidence and determine the truth of the matter," Liberty Lobby, at 248, "such is the prerogative of the finder of fact." Murphy v. Provident Mutual Life Insurance Company, 923 ...

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