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August 11, 1995

DAVID WELCH, Plaintiff,

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


 Pending before this court are the summary judgment motions of defendants Dura-Wound, Inc. ("Dura-Wound") and Protective Coating Developments, Inc. ("PCD"), pursuant to Fed. R. Civ. P. 56; and plaintiff's motion for leave to amend the complaint pursuant to Fed. R. Civ. P. 15(a). Oral argument was heard on July 13, 1995, and the court reserved decision at that time. The following constitutes the court's decision on all three motions.

 The instant complaint was filed by plaintiffs on May 18, 1993, alleging that defendant Dura-Wound was negligent for manufacturing and selling an unsafe machine which was not equipped with proper guards or emergency mechanisms, and should be held strictly liable for their actions. Dura-Wound filed an answer on June 14, 1993, denying the material allegations of the complaint. On March 28, 1994, plaintiff amended his complaint to include PCD, as a defendant. Plaintiff claims PCD was: (1) strictly liable, and negligent for selling the machine without proper safety guards or warnings; (2) strictly liable and negligent because it added the hub and universal joint to the machine making it substantially more dangerous than originally designed; and (3) it breached an implied warranty of merchantability by selling a nonmerchantable machine. PCD filed a third-party complaint against Primary Plastics Inc., on December 1, 1994.


 Dura-Wound manufactured the Model 10-C Winder machine ("machine") in 1984. Its purpose was to spin a mandrel (a pipe on which other pipes are molded) to make fiberglass pipe. Dura-Wound did not sell a mandrel with the machine. PCD bought the machine from an uninvolved party, and eventually sold it to third-party defendant, Primary Plastics, in 1992, along with thirteen components. PCD made no modifications to the machine, and sold it "as is," without any warranty. PCD is in the business of manufacturing fiberglass and epoxy-wound conduits. It is not in the business of selling filament winding machines such as this one. Upon obtaining the machine from PCD, Primary Plastics used a hub and universal joint to attach a mandrel to the machine, and placed it in operation.

 Plaintiff was an employee of primary Plastics. On October 29, 1992, he was in the process of helping two other employees make fiberglass pipe using the Dura-Wound machine when the accident at issue took place. While working at the machine aforementioned, his shirt sleeve became caught on a bolt attaching the spinning hub to the universal joint. He was pulled into the machine and suffered severe injury to his right arm and shoulder.


 A. Dura-Wound's Motion For Summary Judgment:

 A motion for summary judgment must be granted "when the pleadings, evidence obtained through discovery, and affidavits show that there is no genuine issue as to any material fact," Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991), and 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). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). "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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Liberty Lobby, 477 U.S. at 261.

 "In order to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe, and that the defective design was a substantial factor in causing plaintiff's injury." Voss v. Black and Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 402, 450 N.E.2d 204 (1983). The plaintiff claims the machine was defective because it was not manufactured with guards over the spinning mandrel, and did not come with any instructions or warnings concerning the attachment of the mandrel. The plaintiff must "present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner." Voss, 59 N.Y.2d at 108, 463 N.Y.S.2d at 402.

 Dura-Wound argues that the case at hand is similar to Hart v. Hytrol Conveyer Co., Inc., 823 F. Supp. 87 (N.D.N.Y. 1993). In Hytrol, the plaintiff was injured when his finger was caught in a conveyor belt system. The court granted Hytrol's motion for summary judgment because, although it manufactured the conveyor system, the system had been altered from its original state. The court stated that: "Hytrol was not required to design a guard to protect plaintiff from injuries caused because Dell employees created a dangerous condition 13 years after the manufacture and delivery of the conveyor system." Id. at 92.

 Dura-Wound contends that the facts are the same since it did not manufacture the hub and universal joint by which the plaintiff was injured, and could not have known the parts were going to be added. Dura-Wound, therefore, could not have created ...

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