The opinion of the court was delivered by: Sifton, Senior Judge
John Smith and Catherine Smith originally commenced this action against Herman Miller, Inc., in the Supreme Court of New York, Suffolk County, seeking to recover damages incurred when an office chair collapsed. On October 23, 2003, Herman Miller removed the action to this Court. The notice of removal states that Herman Miller is incorporated under the laws of the State of Michigan and has its principal place of business in that state. It further alleges that the Smiths are citizens of New York, and the amount in controversy is in excess of $75,000. John Smith alleges the following claims for relief: 1) negligence; 2) breach of warranty of merchantability; and 3) strict liability. Catherine Smith alleges a claim of loss of consortium.
On August 26, 2005 this Court granted defendant's motion to exclude the testimony of plaintiffs' expert witness and denied defendant's motion for summary judgment without prejudice to its renewal after plaintiffs had either filed a Rule 56(f)*fn1 motion or the time provided for filing such motion had expired. Plaintiffs did not file a motion pursuant to Federal Rule of Civil Procedure 56(f) within the prescribed time.
Presently before the Court is Herman Miller's renewal of his prior motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below defendant's motion for summary judgment is granted.
The following facts are drawn from the Local Rule 56.1 statements, depositions, and affidavits submitted in connection with defendant's first motion for summary judgment and from this Court's August 26, 2005 opinion. They are undisputed except where noted.
John Smith alleges that on July 26, 2002, he was an employee in the commercial loan department of Fuji Bank, located on 52nd Street in Manhattan. On that day, his desk chair collapsed, causing injury to his back. As designed, the chair called for the use of four threaded "mounting bolts" screwed into four metal sleeves inserted into the plastic material of which the chair base was made. These bolts held the seat of the chair to its base. Prior to or during the accident two of the four bolts and inserts fell out of the chair base and were lost. (Def. Rule 56.1 ¶ 15.)
The defendant's expert, Joseph R. Petrella, found no evidence that the chair was defective in any manner. In his report, he states that a review of Herman Miller's drawings and quality control testing revealed that the "threaded insert pullout force" that the chair could sustain was "routinely greater than 2,000 lbs." (Petrella Rep. 3.)
Other than the now excluded report of their expert, plaintiffs have submitted no evidence that the chair had a design or manufacturing defect or was unfit for ordinary use, nor have they responded to defendant's motion for summary judgment.*fn2
A court must grant a motion for summary judgment if the movant shows 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).
Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The trial court's function in deciding such a motion is not to weigh the evidence or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000). Although all facts and inferences are to be viewed in the light most favorable to the party opposing the motion, see Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir. 2001), the nonmoving party must raise more than just "metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586.
Plaintiff has alleged that Herman Miller, as manufacturer, is liable for Smith's injury under theories of negligence, breach of warranty of merchantability, and strict products liability. In a negligence action a plaintiff must prove "that the manufacturer was responsible for a defect that caused injury, and that the manufacturer could have foreseen the injury." Maculuso v. Herman Miller, Inc., 2005 WL 563169, *4 (S.D.N.Y. 2005) (quoting Robinson v. Reed-Prentice Div., 403 N.E.2d 440, 44, (N.Y. 1980). In a breach of warranty claim the plaintiff must prove that the product is "not fit for the ordinary purpose for which such goods are used." Denny v. Ford Motor Co., 662 N.E.2d, 730, 736 (N.Y. 1995). In a strict products liability action a plaintiff must prove that "(1) the product is "defective" because it is not reasonably safe as marketed; (2) the product was used for a normal purpose; (3) the defect was a substantial factor in causing the plaintiff's injuries; (4) the plaintiff by the exercise of ...