See McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 69, 226 N.Y.S.2d 407, 412, 181 N.E.2d 430 (1962); Oliver v. NAMCO Controls, 161 A.D.2d 1188, 1189, 556 N.Y.S.2d 430, 430-31 (4th Dep't 1990). It is alleged that Dura-Wound gave virtually no instructions on the attachment of a mandrel to the machine. This may be especially important in the light of the fact that the machine was designed for such an attachment.
There are genuine issues of material fact as to the modification of the machine, and whether Dura-Wound should have provided instructions or warnings on the use of the product and the attachment of the mandrel.
B. PCD's Cross-motion For Summary Judgment:
PCD bases its argument on the holding of Sukljian v. Charles Ross & Son Co., 69 N.Y.2d 89, 511 N.Y.S.2d 821, 503 N.E.2d 1358 (1986). PCD claims to have sold the machine to Primary Plastics in January of 1992. It states that it sold the machine "as is," without warranty, and without any modifications. The machine was not installed by PCD and it claims it is not in the business of selling winding machines, and this was an isolated incident. Its claim is that Primary Plastics attached the hub, universal joint, and mandrel parts to the machine. PCD argues that it was a casual seller of the product and should not be held liable for plaintiff's injury.
Sukljian dealt with a strict liability and negligence claim against General Electric by a plaintiff who was injured by the equipment he purchased from GE at an auction. The equipment was sold "as is, where is" and was surplus equipment. The court held that not every seller is subject to strict liability. Id. at 95. The court cited Restatement [Second] of Torts § 402 (a) comment F, concluding, "this section is also not intended to apply to sales of the stock of merchants out of the usual course of business, such as execution sales, bankruptcy sales, bulk sales, and the like." The Sukljian Court found that the defendant was not strictly liable or negligent because there was no showing that it was regularly engaged in the business of selling this type of equipment. Sukljian, 69 N.Y.2d at 96-97.
PCD is in the business of selling fiberglass and epoxy-wound conduit. The sale of the winder machine to Primary Plastics was a casual sale of surplus equipment and meets the Sukljian standard. Plaintiff's complaint alleges that PCD added the hub and universal joint to the machine before selling it to Primary Plastics and failed to provide proper guards and warnings. Plaintiff has not offered any proof of these claims, however, and does not oppose PCD's motion.
C. Expert Witness.
Dura-Wound also raises the argument that Daubert v. Merrell Dow Pharmaceuticals Inc., U.S. , 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), would bar the admission of plaintiff's expert as a witness. In Daubert, the reliability of clearly "scientific" testimony was questioned. The application of Daubert to this case has not been fully briefed. Therefore, this argument has not been addressed, and is denied without prejudice to renew.
D. Welch's Cross-motion For Leave To Amend His Complaint:
Plaintiff has moved to amend his amended complaint. See Fed. R. Civ. P. 15(a). The plaintiff seeks to add the allegation against Dura-Wound that the machine was not sold with adequate parts or instructions concerning the proper assembly of a mandrel attachment, and adequate warnings to alert the users of the dangers of improper assembly of the mandrel attachment. The defendant has not raised any opposition to plaintiff's motion. The claim arises out of the same facts as the original complaint, states a meritorious claim for relief, and will not result in any delay or prejudice. Therefore, the plaintiff's motion to amend his complaint will be granted.
PCD's motion for summary judgment is granted as to all causes of action against them. Therefore, the third-party complaint against third-party defendant, Primary Plastics is dismissed as moot. Dura-Wound's motion for summary judgment is denied as to all causes of action. The court extends the deadline for joinder of parties and amendment of the pleadings. Plaintiff's motion to amend the complaint is granted. Dura-Wound is granted permission to commence a third-party action against Primary Plastics.
Accordingly, it is
1. Dura-Wound, Inc.'s motion for summary judgment is DENIED;
2. Protective Coating Developments, Inc.'s motion for summary judgment is GRANTED and the complaint against it is dismissed;
3. The third-party action is dismissed as moot;
4. Plaintiff's motion for leave to amend the complaint is GRANTED, and he has thirty (30) days to file and serve his amended complaint; and
5. Dura-Wound, Inc. may commence a third-party action against Primary Plastics, Inc. within thirty (30) days of service of the amended complaint.
IT IS SO ORDERED.
David N. Hurd
United States Magistrate Judge
Dated: August 11, 1995
Utica, New York.
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