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FEINBERG-DUCKETT v. FORD MOTOR CO.

January 6, 1998

LISA FEINBERG-DUCKETT and STEPHEN DUCKETT; EFONCE, INC. d/b/a BETTER DAYS, Plaintiffs,
v.
FORD MOTOR COMPANY and RAMS INVESTMENT CORPORATION, Defendants.



The opinion of the court was delivered by: HECKMAN

 This matter was referred to the undersigned by Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendant RAMS Investment Corporation ("RAMS") has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, it is recommended that the motion be granted in part and denied in part.

 BACKGROUND

 The complaint in this action was filed on August 18, 1995. Plaintiff Lisa Feinberg-Duckett alleges that on June 24, 1993, while using a 1990 Ford Aerostar van owned by plaintiff EFONCE, Inc., she sustained serious personal injuries when the van struck her after its transmission malfunctioned and spontaneously shifted from "park" to "reverse." The complaint sets forth the following claims:

 
1. That defendant Ford Motor Company ("Ford") negligently designed and manufactured the van, and failed to provide adequate warnings about the defective transmission;
 
2. That Ford is liable to plaintiffs under the doctrine of strict products liability;
 
3. That defendant RAMS (through its agent Kleiser Ford Lincoln Mercury in Wellsville, New York) negligently placed the defective van on the market;
 
4. That RAMS is liable to plaintiffs under the doctrine of strict products liability;
 
5. That Ford and RAMS failed to make recall repairs sufficient to correct the defect, and that RAMS falsely represented that the repairs were made;
 
6. That plaintiff Stephen Duckett has been deprived of the companionship of his spouse, Lisa Feinberg-Duckett; and,
 
7. That plaintiff EFONCE (doing business as a bar, restaurant and catering service known as "Better Days," of which Ms. Feinberg-Duckett is the principal operator) suffered diminution of its business and loss of use of the van.

 (See Item 1).

 Substantial discovery has taken place in the case, including expert witness disclosure (Item 21, Exs. C and D). On September 4, 1997, RAMS filed a motion for summary judgment on the ground that the report of plaintiffs' expert, Neil J. Mizen from Mizen Engineering Company, contains no conclusions as to any wrongdoing by RAMS, and that the report of Ford's expert, Frederick W. King, shows that the recall work was performed properly on plaintiffs' vehicle. In support of its motion, RAMS has submitted only a two-page attorney's affidavit, with plaintiff's expert report and Ford's "Expert Witness Disclosure" attached as exhibits. RAMS has not submitted a memorandum of law or a statement of material facts, as required by Rules 7.1(e) and 56 of the Local Rules of Civil Procedure for the Western District of New York.

 In response, plaintiffs have agreed to withdraw their fifth claim-- ie., failure to properly perform the recall repairs--as against RAMS only. However, plaintiffs contend that genuine issues of material fact remain as to whether RAMS, as the dealer from whom plaintiffs bought the van, should be held liable under theories of ...


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