adding of water by Saunders' driver and the contemporaneous inspection of the concrete by Atlantic's agent are "logically related" events in which the testimony and proof involved would overlap. Thus, Tri-State's right to relief against Saunders and Atlantic arises out of the same transaction or occurrence. Fed. R. Civ. P. 20(a).
Next, Tri-State must demonstrate that a common question of law or fact will arise. Rule 20(a) requires only that there be at least one common question of law or fact. Wright & Miller, Federal Practice and Procedure § 1653 at 387 (citing Hall v. E.I. Du Pont de Nemours & Co., 345 F. Supp. 353, 381 (E.D.N.Y. 1972)). Although this case may involve different bases of liability concerning the duties owed by Saunders and Atlantic, it involves identical factual issues concerning the condition of the concrete (i.e., whether it was clearly defective upon delivery), the actions taken by the various parties at the time of delivery (i.e., whether too much water was added), and the damages sustained by Tri-State. Therefore, there are common questions of fact.
Pursuant to Rule 20(b), Saunders argues that the Court should order a separate trial for Tri-State's action against Atlantic because Tri-State delayed seeking Atlantic as a defendant and has made no claim, supported by sufficient facts, against Atlantic. Saunders' Memo of law at 2-4 see Adorante Aff. P 8. Tri-State defends its actions, arguing that without discovery and a trial, no one can know where the ultimate responsibility for Tri-State's damage should be placed. Tri-State's Memo of law at 14.
Clearly, the purpose of Rule 20 is to allow the joinder of parties when it will prevent delay and prejudice. See, e.g., Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974). One instance where this policy is furthered is where a plaintiff is in doubt as to which defendant is liable in regards to the same controversy. See United States v. Carolina Warehouse Co., 4 F.R.D. 291, 291-93 (D.S.C. 1945). As the South Carolina District Court stated: "Rule 20 . . . undoubtedly contemplates that in such a situation as is here presented the entire controversy should be submitted to the court at one time for determination." Id. at 293. The case at bar is such a situation. Thus, to prevent delay and prejudice this controversy should be decided in one trial.
Based upon the foregoing analysis, Tri-State's Rule 20 joinder motion is GRANTED because Tri-State's claim against Saunders and Atlantic arises out of the same transaction or occurrence, common questions of fact will arise, and a separate trial would cause delay and prejudice.
B. Summary Judgment
Rule 56(c) provides that summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c) see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When the non-movant bears the burden of proof on an issue, the movant satisfies its summary judgment burden by demonstrating the absence of evidence to support an essential element of the non-movant's claim. Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). Once a moving party has demonstrated that no genuine issue of material fact exists, the burden shifts to the non-movant to set forth specific facts which show that there is indeed a genuine issue for trial. Fed. R. Civ. Pro. 56(e); Consarc, 996 F.2d at 572.
A material factual issue is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A material issue of fact does not exist "when reasonable minds cannot differ as to the import of the evidence before the court." Commander Oil, Corp. v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993); Andersen, 477 U.S. at 250-51. Furthermore, when deciding if a material issue of fact exists, the trial court must view the evidence in the light most favorable to the non-moving party and "draw all reasonable inferences in its favor." Consarc, 996 F.2d at 572; United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam).
2. Substantive Legal Principles
In its counterclaim, Tri-State seeks $ 100,000 in damages for Saunders' alleged breach of the contract. Tri-State's Answer (4) P 6. The New York Uniform Commercial Code
contains two different provisions concerning a buyer's recovery of damages for the nonconformity of delivered goods. If a buyer has rejected, or revoked acceptance of, the delivered goods, the buyer's recovery of damages is controlled by N.Y. U.C.C. § 2-715. However, if a buyer has accepted goods and failed to revoke the acceptance, that buyer's recovery of damages falls under N.Y. U.C.C. § 2-714. Therefore, before addressing the issue of damages, a court must determine whether the goods were accepted, rejected or revoked.
a. Acceptance, Rejection or Revocation
With regard to acceptance, N.Y. U.C.C. § 2-606(1) provides in pertinent part:
Acceptance of goods occurs when the buyer