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October 10, 1996

DAVID J. PAHUTA, JR., Plaintiff,

The opinion of the court was delivered by: HECKMAN


 On April 20, 1990, plaintiff was loading a twenty-foot length of corrugated steel pipe into a dump truck for his employer, Keeler Construction, using a tractor loader with a forklift attachment to lift the pipe. As plaintiff attempted to drop the pipe over the side of the dump truck, the pipe rolled backward over the forks, down the loader arms, and landed on top of him. Plaintiff is permanently paralyzed as a result of the injuries he received.

 On October 4, 1990, plaintiff commenced an action against Varity, Inc. *fn1" in the Supreme Court, Erie County, State of New York. On February 8, 1991, all claims against Varity were discontinued and Massey-Ferguson, Inc. was substituted as the only named defendant. *fn2" The case was then removed to this court on the basis of diversity of citizenship.

 The machine involved in this incident was a model MF20 tractor bearing serial number 9A93530 and equipped with an MF32 loader bucket (hereinafter "MF20 tractor loader"). It was manufactured by defendant on February 24, 1970 and was shipped to a local dealer on February 25, 1970. Keeler Construction purchased the machine on April 16, 1970. Keeler Construction owned the tractor loader for the twenty years prior to plaintiff's injuries.

 Plaintiff claims that defendant is liable for plaintiff's injuries on theories of negligence, strict liability, and breach of express and implied warranties (Item 1, Ex. A). In his complaint, plaintiff alleges that the MF20 tractor was defective when it was manufactured because its design did not incorporate a roll cage and because it was sold with a forklift attachment that operated in a highly dangerous manner. Plaintiff also alleges that defendant negligently failed to warn of the tractor's dangerous condition.

 On November 16, 1995, defendant moved for summary judgment. Defendant admits that plaintiff's injuries would have been avoided had the MF20 been equipped with either a rollbar, ROPS (roll over protective structure), or self-leveling device for the loader and forklift attachment (Item 51, Statement P 10). *fn3" However, defendant argues that it is entitled to summary judgment on the grounds that: (1) a manufacturer cannot be held liable for injuries caused by a product where it made optional safety equipment available and made the purchaser aware of those options, and (2) plaintiff's breach of warranty claims are time-barred.

 On January 2, 1996, plaintiff's attorney filed a responding affidavit (Item 57). Essentially, plaintiff's argument is that roll over protection was required by New York law and industry standards at the time the MF20 tractor loader was manufactured in 1970, and that defendant failed to make such protection available to purchasers.

 On September 10, 1996, defendant moved for an order precluding certain of plaintiff's exhibits from consideration in the motion for summary judgment on the ground that plaintiff failed to comply with a Rule 34 discovery request (Item 73).

 On September 13, 1996, more than eight months after filing his affidavit in opposition to the summary judgment motion, plaintiff filed a memorandum of law in opposition to that motion and defendant's motion for order of preclusion (Item 80). Plaintiff's memorandum cites few cases and provides no analysis of the legal issues raised in defendant's motion for summary judgment.


 I. Summary Judgment

 Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995).

 The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. To avoid summary judgment, the nonmoving party must then come forward with enough evidence to support a jury verdict in its favor. The nonmoving party cannot prevail "merely by vaguely asserting the existence of some unspecified disputed material facts," Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir. 1989), or on the basis of "mere speculation or conjecture." Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 12 (2d Cir. 1986) cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). When a dispute in fact is shown to exist, it must be material in light of the substantive law. ...

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