MARIAN MAJCHER and

RUTH MAJCHER,

Plaintiffs,

-vs- Index #H-02396

FEDERAL MACHINE COMPANY,

Defendant.

-----------------------------------

FEDERAL MACHINE COMPANY,

Third Party Plaintiff,

-vs-

MOENCH TANNING COMPANY, INC.,

Third Party Defendant.

MISERENDINO, CELNIKER, SEEGERT

& ESTOFF, P.C. (Michael R.

Drumm, Esq. of Counsel) for

Plaintiff

WILLIAMS, STEVENS, MCCARVILLE

& FRIZZELL, P.C. (Beth A.

Gold, Esq. of Counsel) for

Defendant & Third Party Plaintiff

Federal Machine Company

BOUVIER, O'CONNOR

(John F. Canale, Esq. of Counsel)

for Third Party Defendant Moench

DECISION and ORDER

GERACE, J.

Plaintiff has moved for summary judgment against defendant Federal Machine Company ("Federal"); Federal moves to dismiss the complaint.

This is a products liability action that arose out of an

industrial accident when plaintiff's right hand and arm were

caught in a Perlon conveyer as he attempted to adjust the machine while it was still running.

All of the guarding, electrical switches, wiring and

electrical components on the conveyor was furnished by plaintiff's employer, Moench Tanning Company, the third party defendant ("Moench").

Federal claims they merely supplied component parts,

specifically a framework for the machine, and Moench supplied

the rest; Plaintiff claims Federal made the entire conveyer

except for minor additions or variations furnished by Moench.

Federal claims it only manufactured the framework and did so according to Moench's specifications; that it was only a small part of the conveyor system; that Moench configured and reconfigured it according to its own needs; that the framework was not operable without Moench's modifications.

Federal relies on LEAHY v. MID-WEST CONVEYOR, INC., 120 AD2d 16, 507 NYS2d 514 (3rd Dept) which held that manufacturers of component conveyors were not liable to employee of a company that purchased components for incorporation into larger conveyor system where the manufacturer produced components in accordance with

company's design and specifications, absent evidence design and specifications revealed inherent dangers in component parts.

Jeffrey Paul Smith, plant engineer for Moench, testified

that the guarding, electrical switches, wiring and perlon

were all installed by Moench and Moench designed and

fabricated the guarding as well.

Smith also testified that the machine was reconfigured

periodically by Moench which meant few, if any, of the

original components from Federal were involved in the

accident.

The problem with Smith's testimony is that he has no

personal knowledge as to the machine in question prior to the

accident because he has only been working at Moench since the

mid-80's.

Edward Canty, president of Federal, who was involved at

the time the machine was purchased, testified Federal

furnished components only; that the components did not

include guarding or electrical apparatus per the contract and

Moench's specific instructions. However, he seems to think

the machine was not reconfigured.

Plaintiff claims Federal manufactured all but a small part of the machine and under ROSADO V. PROCTOR, 66 NY2d 21, 494 NYS2d 851, Federal is liable as a matter of law because it was in the best position to know the dangers inherent in its product and what safety devices should be employed.

Plaintiff says the machine had inadequate guarding and did not have an accessible shut off, and lacked proper warnings. He argues that defendant could not rely on boilerplate language in a sales contract to shift its responsibility on the purchaser.

Defendant also says plaintiff misused the product by trying to make an adjustment without first shutting off the equipment.

The Court rejects plaintiff's objection that defendant's

motion is based on hearsay rather than on personal knowledge

or admissible evidence. Mr. Canty had personal knowledge; he

was involved in the transaction between Federal and Moench.

He related hearsay discussions with David Warne, the

engineer for Moench some 20 years ago, who is no longer with

the company and is apparently unavailable.

Because of Warne's unavailability, his discussions

with Mr. Canty are admissible under an exception to the

hearsay rule. Generally, on motions of this type, the Court

has discretion as to the admissibility of evidence. The Canty-

Warne discussions are relevant and admissible on this motion

even though there is no guarantee they will be admitted at

trial.

Moench has joined in Federal's motion claiming that

Federal only supplied component parts.

While several issues have been raised, clearly the main

issue is whether Federal merely supplied component parts or

supplied a complete machine. This is a question of fact for a

jury.

Plaintiff maintains that because there was a "pinch

point" on the machine, Federal had a duty to warn. It is

difficult to decide if such a duty existed without knowing if

Federal merely supplied a frame, or a substantially complete

machine.

Defendant cites BLISS V TENNECO, 64 Ad2d 204, (4th Dpt),

to support the proposition that the duty of warning regarding

safety features rests upon the party who made the decisions

about those features. Here, both seller and purchaser claim

the purchaser Monech designed, fabricated and installed the

guarding and electrical apparatus for the machine.

The facts are in such conflict here that the Court cannot

determine exactly what Federal manufactured, and cannot determine whether the case falls within the LEAHY or R0SADO rationale.

One of the problems here is that there are few people with first hand facts because whatever Federal manufactured was sold to Moench over 20 years ago. Nevertheless, as long as there is a serious question of fact, the Court cannot grant either motion.

Federal sent additional submissions after argument of

the motion without stipulation of the parties or consent of

the Court. The Court has not read nor considered these

submissions and returns those submissions; they cannot be

considered on this motion. The Court must decide on what was

presented at the time of the motion.

Plaintiff's motion for summary judgment and defendant's

motion to dismiss are both denied, without prejudice and without costs to either party.

Should either party make a new motion, the papers on the

present motion may be incorporated by reference in any new

affidavit.

This is the DECISION and ORDER of this Court. No further

order shall be necessary.

Dated: March 13, 1995

Mayville, New York

JOSEPH GERACE

Supreme Court Justice