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June 28, 1995

PAUL SANDERS, Plaintiff, against QUIKSTAK, INC. and THE REXROTH CORP, Defendants. PAUL SANDERS, Plaintiff, - against - QUIKSTAK, INC. and LITHIBAR MATIK, INC., Defendants.

William C. Conner, Sr. United States District Judge

The opinion of the court was delivered by: WILLIAM C. CONNER

CONNER, Senior D.J.:

 Defendant The Rexroth Corp. ("Rexroth") has moved for summary judgment pursuant to Rule 56(b), Fed. R. Civ. P. For the reasons stated below, we deny the motion, without prejudice to renew after the completion of discovery.


 At the time of the accident that forms the basis of this lawsuit, plaintiff Paul Sanders was employed by Package Pavement Co. to operate a palletizing machine. The parties do not dispute that when the machine functions normally, the operator manually arranges seven bags of cement mixture, received from a conveyor belt, on the palletizer loading plate. Once the bags are properly positioned, the operator uses a joystick to open the loading plate, dropping the bags onto the pallet waiting below. The operator then uses the joystick to close the loading plate and repeats the process until the pallet is fully loaded.

 Plaintiff alleges, however, that on February 28, 1994, an eighth bag became caught in the palletizer, preventing the loading plate from closing. He contends that he let go of the joystick, which then returned to a neutral position, and reached into the machine to remove the stray bag. Although the loading plate should not be able to move while the joystick is in the neutral position, the loading door closed and crushed plaintiff's left elbow.

 Plaintiff filed suit in June 1994 in New York Supreme Court. His complaint stated claims for negligence, strict products liability, and breach of express and implied warranty. Plaintiff alleged manufacturing and design defects in the palletizer and each of its component parts, as well as the failure by each defendant to fulfill its duty to warn of the dangers associated with operating the palletizer or its component parts. The suit was removed to this court on August 1, 1994. Plaintiff originally brought claims against a number of defendants, but has voluntarily dismissed as to all of them except Quikstak Inc. ("Quikstak"), the manufacturer of the palletizer, and Rexroth, the manufacturer of the hydraulic unit that powered the loading plate. *fn1"

 In the nearly eleven months that have elapsed since the suit was removed to this court, some discovery has occurred under the direction of Magistrate Judge Mark D. Fox, but discovery is by no means complete. The parties have deposed Charles Dutcher, the site manager of the facility where plaintiff was injured. Rexroth and plaintiff have exchanged interrogatories, although neither seems to be satisfied with the answers received. Rexroth has also provided some documentation about the hydraulic unit to plaintiff. Rexroth maintains that it has provided all of the information that it has about the unit; plaintiff asserts that he has not received schematics, operators' manuals and maintenance manuals that would enable his expert to determine whether the hydraulic unit was defectively designed or manufactured or whether Rexroth provided appropriate warnings. No party depositions have taken place, and plaintiff has received no discovery from defendant Quikstak. *fn2"

 This case was transferred to us from the docket of Judge Vincent L. Broderick on March 23, 1995. At a pre-trial conference held on April 12, 1995, we set October 15, 1995, as the deadline for the completion of all discovery. Despite the limited discovery that has occurred to date, Rexroth has moved for summary judgment on all of plaintiff's claims. After a careful examination of the memoranda, affirmations and supporting documents filed by both parties, we find that granting summary judgment at this time would be improvident.


 Summary judgment should be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Supreme Court has held that the entry of summary judgment is appropriate "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those [materials] which it believes demonstrate the absence of a genuine issue of material fact." Id., at 323. It may discharge that burden merely by "pointing out to the district court [] that there is an absence of evidence to support the nonmoving party's case." Id., at 325; Gallo v. Prudential Residential Services, Ltd., 22 F.3d 1219, 1223-24 (2d Cir. 1994). In order to defeat summary judgment, the nonmoving party must "go beyond the pleadings and . . . designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. No genuine issue for trial exists unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict for that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The burden on the nonmoving party is tempered by two considerations, however. First, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id., at 255. Second, summary judgment should only be entered on the ground that the nonmovant's proof is insufficient when the nonmovant has had an adequate opportunity to conduct discovery. See Celotex, 477 U.S. at 322. The court should not permit the nonmoving party to be "'railroaded' by a premature motion for summary judgment.'" Id., at 326. The Supreme Court has indicated that "any potential problem with such premature motions can be adequately dealt with under Rule 56(f), . . . if the nonmoving party has not had an opportunity to make full discovery." *fn3" Id.

 Turning to the particular circumstances of this case, the defendant has based its argument in favor of granting summary judgment primarily on plaintiff's failure to allege a specific defect in the hydraulic unit. *fn4" In order to recover on his negligence, strict liability or implied warranty claims, plaintiff must prove the existence of a defect in the hydraulic unit. See Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 426 N.Y.S.2d 717, 720, 403 N.E.2d 440 (N.Y. 1980) (strict liability); Rosenzweig v. Arista Truck Renting Corp., 34 A.D.2d 542, 309 N.Y.S.2d 93, 95 (App. Div. 1970) (negligence and implied warranty). A defect in a product may consist of a mistake in manufacturing, a design flaw, or inadequate warnings for the use of the product. See Robinson, 426 N.Y.S.2d at 720. In this case, there is no doubt that plaintiff has not alleged, much less produced evidence of, a specific defect in the hydraulic unit. Plaintiff's response to Rexroth's interrogatories and plaintiff's affirmation in opposition to this motion candidly admit that plaintiff has been unable as yet to ...

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