United States District Court, W.D. New York
MEMORANDUM AND ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE.
plaintiff commenced this action on September 22, 2011,
asserting claims for negligent product design and strict
products liability. See Docket Items 1 & 19
(Amended Complaint). On December 30, 2013, the defendant
moved for summary judgment. Docket Item 62. After the
plaintiff submitted her response (Docket Items 69 & 72),
the defendant moved to strike the declaration of the
plaintiff's expert witness. Docket Item 76. United States
Magistrate Judge Jeremiah J. McCarthy thereafter issued a
Report and Recommendation (“R&R”), dated June
25, 2014, in which he recommended that the defendant's
motion for summary judgment be granted. Docket Item 83. Judge
McCarthy also denied the defendant's motion to strike
“without prejudice to renewal in the event that [the]
recommendation [on summary judgment] is not adopted.”
Id. at 1. Pending before this Court are the
plaintiff's objections to the R&R.
case was reassigned from United States District Judge Richard
J. Arcara to the undersigned on March 7, 2016. Docket Item
92. On March 23, 2016, this Court heard oral argument on the
plaintiff's objections. Docket Item 95. Both sides were
permitted to submit additional briefing, and they did so on
April 13, 2016. See Docket Items 97 & 98.
reasons set forth below and in the R&R, the
defendant's motion for summary judgment (Docket Item 62)
respect to dispositive matters such as the defendant's
motion for summary judgment, this Court “must determine
de novo any part of the magistrate judge's disposition
that has been properly objected to” and “may
accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed.R.Civ.P.
72(b)(3); see 28 U.S.C. § 636(b)(1).
extent that the plaintiff objects to non-dipositive matters,
this Court “may reconsider” the magistrate
judge's decision only “where it has been shown that
the magistrate judge's order is clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A);
see Fed. R. Civ. P. 72(a).
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The movant-i.e., the party seeking
summary judgment-has the initial burden of showing that there
is no genuine dispute of material fact. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). It may satisfy
this burden by relying on evidence in the record,
“including depositions, documents, . . . [and]
affidavits, ” Fed.R.Civ.P. 56(c)(1)(A), or by
“point[ing] to an absence of evidence to support an
essential element of the nonmoving party's claim.”
Goenaga v. March of Dimes Birth Defects Found., 51
F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S.
at 322-23); see Fed. R. Civ. P. 56(c)(1)(B). Once
the movant has satisfied its initial burden, “the
nonmoving party must come forward with specific facts”
showing that there is a genuine dispute of material fact.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (internal quotation marks omitted).
genuine dispute of material fact exists “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[T]he court must view the evidence in the record in
the light most favorable to the non-moving party” and
must draw “all reasonable inferences in that
party's favor.” Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). But
“conclusory statements, conjecture, or speculation by
the party resisting the motion will not defeat summary
judgment.” Kulak v. City of N.Y., 88 F.3d 63,
71 (2d Cir. 1996).
plaintiff objected to (1) Judge McCarthy's recommendation
that summary judgment be granted to the defendant and (2) the
denial of the defendant's motion to strike to the extent
that it was without prejudice. The plaintiff also requested
that this Court grant her summary judgment, even though she
did not move for such relief, pursuant to Fed.R.Civ.P. 56(f)
(“Judgment Independent of the Motion”).
THE PLAINTIFF'S THEORY
plaintiff claims that she suffered injuries on September 26,
2008, when she slipped and fell in her workplace cafeteria.
See Docket Item 19 (Amended Complaint) at 2
(¶¶ 3-4). She alleges that her “accident
resulted from water leaking onto the floor from a ‘Q
Model' ice making and dispensing machine
combination.” Id. (¶ 5).
defendant manufactured and sold the ice
dispenser-specifically, a Model QFA-291-in May 2000. Docket
Item 69 at 3 (¶ 1). At the time of the
incident, non-party Reite-Way Refrigeration
(“Reite-Way”) owned the ice dispenser and was
leasing it to the plaintiff's employer, non-party Bank of
America. See Id. at 4-5 (¶ 4). Reite-Way had
installed the ice dispenser in the cafeteria at Bank of
America's offices in Getzville, New York, on April 11,
2008. See Id. (¶¶ 4, 6). Under the lease,
Bank of America was responsible for maintaining the ice
dispenser (although the property owner, non-party Uniland
Property Management Company, also may have cleaned the
machine). See Id. at 4-5 (¶ 4), 17-18 (response
to ¶ 25).
dispenser “had a drain pan that was designed to catch
any excess ice that might fall, ” allowing it to
“melt and then exit the machine through [a] vinyl half
inch diameter drain line.” Id. at 9 (¶
13). It is undisputed that “[t]he ice dispenser drain
was designed for liquid only” and “was not
designed to be a garbage disposal.” Id. at 8
(¶ 12). So when employees “threw garbage into the
drain pan, ” Reite-Way was repeatedly called to service
or clean the machine. Id. at 6-9 (¶¶
plaintiff describes it, employees “use the ice catch
basin as a convenient disposal for food items and coffee
stirrers, etc., ” which causes “the
defendant's unprotected ice catch basin drain [to become]
plugged and causes water to overflow onto floors.”
Id. at 7 (response to ¶ 10). Thus, it is the
plaintiff's theory that the ice dispenser was defectively
designed because “workers' use of defendant's
ice catch basin as a ‘garbage disposal' was
foreseeable . . . and defendant is liable for failing to
safely design its product in light of that foreseeable
misuse.” Docket Item 72 at 8. The plaintiff does not
allege any manufacturing defect or failure to