The opinion of the court was delivered by: Siragusa, J.
This diversity personal injury case is before the Court for consideration of the following motions: Docket No. 183, a motion filed by ProMaxima Manufacturing Company/ProMaxima Manufacturing Ltd. ("ProMaxima") for summary judgment dismissing the cross-claims of M-F Athletic Company, Inc., for contribution and indemnity; and Docket No. 188, M-F Athletic Company, Inc.'s ("M-F Athletic"), motion for an Order pursuant to Federal Rule of Civil Procedure 41 discontinuing its cross-claim against ProMaxima without prejudice. For the reasons stated below, ProMaxima's motion is granted, and M-F Athletic's motion is denied. This corrected decision fixes a typographical error on page seven of the originally docketed Decision and Order.
On May 16, 2004, at approximately 7:30 a.m., Plaintiff Louis Bloom, was working out at the fitness center located at The Lodge at Woodcliff. He was using a Roman chair manufactured by ProMaxima and sold to Woodcliff Associates LLC, d/b/a The Lodge at Woodcliff ("Woodcliff") by M-F Athletic in August 2000. The Roman chair was a piece of exercise equipment that Plaintiff had successfully used three to four times per week for seven years. However, on this occasion when Plaintiff put his legs under the foot rest T bar on the Roman chair, the T bar came out, and Plaintiff fell head first to the floor sustaining injuries.
ProMaxima assembled, wrapped and shipped the chair on a truck to Woodcliff directly from its facilities. ProMaxima did not provide any instruction manual, user guide or written information on the use of the Roman chair. ProMaxima designed the Roman chair in 1981 or 1982 and, the chair, as designed, has a foot restraint bar that can be raised or lowered into a sleeve to fit the user's personal preference. A pin is slid through one of the holes on the sleeve and into one of the holes on the restraint bar to lock it in position, but the design of the chair precludes seeing the hole in the restraint bar, and, consequently, the user must rely on the audible "click" of the spring-loaded pin to know it has gone into a hole. Unfortunately, it is possible to put the restraining pin into a hole below the restraint bar and still hear the "click" as the spring pushes it into place, but in that position, the pin does not engage the restraint bar. This is what Woodcliff contends Plaintiff must have done.
From the time of its receipt, Woodcliff had had no complaints from users about the Roman chair, and no modifications or repairs had been made to it. Once per year, Woodcliff had all the equipment in its fitness center inspected by an independent company owned by Charles "Chip" Pittman. During his annual inspections, Mr. Pittman never found that the pin was in need of repair.
The case was tried to a jury in early 2010. During the trial, Plaintiffs reached a settlement with M-F Athletic. On February 2, 2010, the jury reached a verdict of "no cause" against ProMaxima Manufacturing Company. Although the did specifically find that the Roman chair was "defective because of a failure to warn," it determined that Plaintiffs had not "proven that any defect in the ProMaxima Roman Chair because of a failure to warn was a substantial factor causing the accident to Louis Bloom." (Jury Verdict ¶¶ 3 & 4 (Docket No. 162).)
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, 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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.11[a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986).
Once that burden has been met, the burden then shifts to the non--moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804
F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. Fed. R. Civ. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition ...