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August 17, 2005.

PHILLOCRAFT INC., and "JOHN DOES, INC.," persons intended to be distributors, repairers, assemblers, installers of product involved in this action, Defendants.

The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge


Plaintiff Lori Ann Winstead brought this action against defendant Phillocraft Inc. for injuries allegedly sustained as a result of Winstead's use of a chair alleged to be manufactured by defendant.*fn1 Plaintiff's complaint alleges negligence, breach of express and implied warranties, and strict liability in tort based on defective design.

This action was originally brought in New York State Supreme Court, Bronx County on May 1, 2003, and removed to federal court on the basis of diversity of citizenship jurisdiction on May 28, 2003. The case was transferred to this court from Judge Deborah Batts on October 7, 2003. The defendant now moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing all claims against it on the grounds that plaintiff is unable to establish that defendant manufactured the chair in question. For the reasons set forth below, defendant's motion for summary judgment is hereby GRANTED. I. BACKGROUND

  The plaintiff was a token booth clerk for the New York Transit Authority at the time of the event in question. Plaintiff claims that she was injured while working in a token booth when the back of her chair suddenly fell off, causing her to fall to the ground. The New York Transit Authority, which is not a party to this matter, disposed of the chair allegedly responsible for plaintiff's injuries after the accident, and it was therefore never produced for inspection by the parties. Although plaintiff has made extensive efforts to procure an exemplar chair from the New York Transit Authority, she has been unable to do so.

  The following facts are undisputed. Plaintiff's accident occurred on June 7, 2000 at the Hunter College subway station, where she was working as an assistant in the token booth with another clerk. (Deposition of Lori Ann Winstead, dated February 10, 2004 ("Winstead Dep."), at 12-13, 15-16, 18, 20.) There were two chairs in the token booth, one for each clerk, and the chairs were the same. (Id. at 21-22.) Plaintiff had no information as to who purchased or manufactured the chair she was using at the time of the accident, or when the chair was purchased. (Id. at 37). At plaintiff's deposition, plaintiff described her chair in the following way:
Q: Can you tell me what [the chairs] looked like?
A: They were blue and there was a seat of the chair and it [sic] was a back to the chair, no armrests.
Q: How high was the chair off the ground?
A: Maybe three feet.
Q: What material was the seat coverings made out of?
A: Imitation leather.
Q: And the rest of the chair, do you know what material — what did it look like; was the whole chair blue or was just the seat area blue?
A: Well — . . . I am not sure. It was blue though . . .
Q: Which part of the chair was blue?
A: The seat of the chair.
Q: And what about the backrest, what color was that?
A: I'm not sure.
Q: You stated that the seat was made out of an imitation leather type of material?
A: I can't recall.
Q: What about the back of the chair, what kind of material was on the back of the chair?
A: It was — the chair had the same cover on the back of the seat, as far as I remember.
Q: Do you know if the cover was also blue?
A: I believe it was.
Q: What about the legs of the chair, what color was that?
A: They were made of iron, painted black.
Q: Had you ever seen this type of chair in any of the other token booths that you worked at?
A: Yes.
  (Id. at 22-24.) Plaintiff testified that at the time of the accident she was sitting on the chair counting money at her window. (Id. at 26.) Prior to the accident, the plaintiff did not notice any problems with the chair or that it was loose or wobbling. (Id. at 30-31.) While she was sitting in the chair, the backrest of the chair fell off. (Id. at 26-27.) Although her back was not touching the backrest at the time it fell off, when the backrest of the chair came off, it caused her to fall off the chair. (Id. at 27, 32-33).

  David Wong, a Station Supervisor for the New York Transit Authority, was the supervisor who responded to plaintiff's accident and filled out the accident report. Wong testified that the chairs in the token booth were both the same type, and were the same as most of the chairs in other token booths. (Deposition of David Wong, dated December 2, 2003 ("Wong Dep."), at 25.) He testified that the chairs were made of cloth, and described the chairs as "stationary, no arm rest. The back portion of the chair is adjustable. . . . [T]he back portion of the chair is attached to the bottom of the chair . . . and you can move that back portion forward or backward and [it] also had a screw on the bottom to holding [sic] that back portion of the chair." (Id. at 25-26.) Wong had no information as to who manufactured the chair or from whom it was purchased, and did not observe any identifying features on the chair that would indicate who manufactured the chair or what the model number was. Wong also had no information regarding when the chair was purchased, though he did state that the chair was "fairly new" and in "good condition." (Id. at 26-27, 36, 71.)

  According to Wong, chairs would remain in use until somebody reported a defect, and the New York Transit Authority would replace a chair once a complaint was filed. (Id. at 35.) If a new chair was needed, the chair, still in the box from the manufacturer, would be picked up from the Material Control office at Penn Station, and a supervisor and/or a cleaner would transport the chair using a hand truck to the appropriate token booth. The chair would then be assembled by a transit worker. Wong testified that he had no recollection of seeing the name Phillocraft on any of the boxes that contained the chairs used in token booths. (Id. at 36-41.)

  Wong testified that all of the chairs came with instructions on how to assemble the chair, and that assembly of the chair was "very simple." (Id. at 42.) According to Wong, the chairs came in three pieces — the seat, the bottom, and the back — with written instructions and diagrams regarding assembly. (Id.) The back portion of the chair was attached with a piece of metal that is put into a slot on the bottom of the chair, which allows the back of the chair to move forward or backward, and a screw on the bottom is used "to tighten it up." (Id. at 44.) The clerks could adjust the screws for their comfort while working. The back portion of the chair could be unscrewed, which allowed the back of the chair to be moved forward or backwards. (Id. at 68-69.) Wong testified that even without the screw, the back of the chair could remain in place "if you put the back part further in." (Id. at 75.) The chairs also had a handle on the side to adjust the height. (Id. at 68.)

  When Wong arrived at the scene of plaintiff's accident, he saw the back of the chair on the ground, but did not see the screw. (Id. at 69-70.) He looked for the screw, but was unable to find it. (Id. at 70.) Wong testified that after plaintiff's accident, the original chair was removed from the token booth and the Transit Authority replaced the broken chair with a new one. Wong did not know the whereabouts of the original chair, and testified that, as a general practice, an old chair reported to be broken or not usable would be discarded. (Id. at 52-55.)

  Peter Schoenhoff, the Director of Engineering for Falcon Products, of which defendant Phillocraft, Inc. is a subsidiary, testified that all chairs manufactured by defendant have a Phillocraft label affixed to the underside of the chair's seat that contains warrant information, a product warning, and flammability information. (Deposition of Peter Schoenhoff, dated January 21, 2004 ("Schoenhoff Dep."), at 51-52.)

  Schoenhoff described the chair ordered from Phillocraft by the Transit Authority as follows:
The chair is a task chair. It contains a gas cylinder . . . that allows the seat height to be adjusted. . . . The back of the chair is attached to the seat of the chair through a metal J-shaped bar. The bar is attached to the seat, and in the back there is an oversized screw to allow easy adjustment of the back height and seat depth. . . . The chair back itself is made of a molded plywood part, which was purchased from a vendor. That molded plywood part is then drilled and hardware is installed on that for the mounting of the adjustment knob. The receptacle for the screw is installed by Phillocraft.
(Id. at 55.)
  According to Schoenhoff, Phillocraft ships the chairs to the customer partially assembled. (Id. at 61.) The customer has to connect the J bar to the back of the chair with screws. (Id. at 61-62.) "There is a slot in the seat where the J bar is inserted into the screw to secure the J bar to the seat. The back is then attached. The J bar and the second screw is [sic] used to secure the back to the J bar. That completes the assembly process. No tools are required." (Id. at 62.) The two screws used to assemble the chair are the same. (Id. at 62.)

  To adjust the seat back, one would turn the screw to loosen it and adjust the back portion of the chair, and then re-tighten the screw. (Id. at 70.) Once someone loosens the screw to adjust the chair, there is no mechanism to keep the screw from turning even more until it comes off. (Id. at 71.) Schoenhoff estimated that the screw would require four or five full revolutions to come off completely. (Id. at 71-72.)

  Schoenhoff testified that the chair is designed in such a way that "when someone leans back in the chair, they cause a lever effect which pinches the J hook causing it to bind and not move. It can only be adjusted by pushing it straight in or out, not by angling, and typically the movement of leaning back is going to cause the binding to occur." (Id. at 69.) This would occur regardless of whether the screw used to secure the back of the chair to the J bar was in place. (Id.) Schoenhoff was unaware of any ...

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