STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________

MARIAN MAJCHER

and RUTH MAJCHER

Plaintiffs,

vs Index #H-02396

FEDERAL MACHINE COMPANY

Defendant.

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FEDERAL MACHINE COMPANY,

Third-Party Plaintiff,

vs

MOENCH TANNING COMPANY, INC.

Third-Party Defendant.

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MISERENDINO, CELNIKER,

SEEGERT, & ESTOFF, P.C.

(Michael R. Drumm, Esq.

of Counsel) for Plaintiffs

WILLIAMS, STEVENS,

McCARVILLE, & FRIZZELL, P.C.

(Gerald J. Whalen, Esq.

of Counsel) for Defendant

BOUVIER, O'CONNOR

(John F. Canale, Esq.

of Counsel) for Third-Party Defendant

DECISION AND ORDER

GERACE, J.

Defendant and Third Party Plaintiff Federal moves for

summary judgment dismissing the complaint; Defendant Moench

joins in the motion. Plaintiff moves for partial summary

judgment on liability.

STATEMENT OF FACTS

This is a products liability action that arose out of

an industrial accident when plaintiff's right hand and arm

were caught in a conveyer.

About 1969, defendant Federal Machine Co. sold and

installed various component parts of a drying/conveyer

system at the request of defendant, Moench Tanning Co.

Many years later, the machine was completely reconfigured.

Subsequently, plaintiff was injured while working with the

machine.

At his deposition of 4/22/95, Edward Canty, President

of Federal, testified that the machine in question appeared

to be unchanged since the time it was installed in 1969.

Various motions were brought after discovery was completed,

and pre-trial conferences were held.

After a prior round of summary judgment motions had

been argued on 1/9/95, the Court was informed about the

identity of a new witness, Edward Matthews, the head

machinist for Moench Tanning Co. from 1957 to 1992. He

testified at a deposition taken on 8/29/95 that the machine

was in fact completely changed by him from the late 1970's

throughout the 1980's all prior to plaintiff's accident.

His testimony completely contradicted the factual scenario

in the Cantry testimony.

Defendants brought motions for summary judgment;

plaintiff cross-moved for summary judgment stating that the

introduction of Mr. Matthews' testimony was an impeachment

by the defense of their own main witness and was

inadmissible.

The Court DENIES defendant Federal's motion for

summary judgment; GRANTS plaintiff's motion for preclusion

of the Edward Matthews Affidavits and testimony as against

plaintiffs and plaintiff's motion for summary judgment;

partially GRANTS plaintiff's motion for summary judgment

based on papers submitted by Plaintiffs on this and their

initial motion for summary judgment, including the EBT

testimony of Edward Canty; GRANTS to Federal as Third Party

Plaintiff summary judgment over against the defendant

MOENCH TANNING COMPANY based on the testimony of Edward

Matthews.

Moench knew Matthews was involved in any changes on

most of the machines in its plant and certainly knew

whether he completely reconfigured the machine in question.

Canty never mentioned Matthews in his testimony nor that

Matthews assisted him in the planning and installation of

the machines; nor did Canty say that his memory was

refreshed by Matthews' affidavits and testimony.

Mysteriously, no one at Moench mentioned him as a

witness.

Matthews' name and what he knew never surfaced until

after the note of issue was filed; apparently never

surfaced until early January 1995, when Counsel for Federal

spoke to him by telephone; what Matthews knew or did not

know did not surface until the deposition ordered by this

Court.

Witness demands were served on both defendants;

neither of them identified Matthews as a witness; nor did

witnesses who were deposed ever identify Matthews. As a

result, his version remained in the dark until he

testified.

The refusal of both Defendants to allow the deposition

of Edward Matthews was unjustified. The circumstances here

qualified as a circumstance justifying post note of issue

filing disclosure. See UR 202.21(d); DAVID D. SIEGEL, NEW

YORK PRACTICE, Sec 370; CONNELL v CITY OF NEW YORK, 102

Misc. 2d 585, 424 NYS2d 81. The fact that the note of

issue had been filed should not have dropped the curtain on

what appears to have been the truth.

If Federal (Canty) and Moench had revealed Matthews

and his involvement early in the proceedings, plaintiffs

and their counsel would have been in a position to properly

prepare for and evaluate their case. Instead, they have

been put to a great expense and led down a different path

in this litigation.

Defendants cannot excuse their failure to mention the

existence of Matthews or any knowledge he had of

configuration just because plaintiff said little or nothing

about either.

Defendants (especially Moench) are the ones who

omitted this key person from their responses to witness

demands; they were in the best position to determine

whether the Matthews' modifications were made with

Federal's knowledge and participation. Matthews himself

testified that the machine in question was experimental.

Matthews P.94, line 18.

Did Moench deliberately keep Matthews' existence,

involvement and knowledge a secret in the hope Federal

would be found responsible without judgment over against

Moench? The inference and suspicion is irresistible.

The following unrefuted excerpts from Matthews'

testimony are revealing;

"I was contacted by somebody that told me they

wanted me to testify on Federal's behalf. Just

come and tell the truth. I can't remember who it was.

So, I went down and I told these people, 'I'll have to

go down to the Plant'. It was before we took the

machinery out." Matthews P. 104, lines 22-23 and

P. 105, line 1-3.

"Only one I recall was Mr. Blatner or Mr. Spicola

from the front office in the Plant."

Matthews P. 106, lines 5-6.

"They asked me if I could testify to the fact that

I remodeled that machine. I said, 'Yes, I can, but

let me go and look over the machine and bring back

old memories so I know exactly what I'm talking

about'." Matthews P. 106, lines 21-23 and

P. 107, line 1.

"I said -- I was talking to Mr. Blatner. I said,

'Can I come down to the Plant tomorrow morning and

look over the machine and bring back old memories?'

And he said, "Yes, Ed". I was met at the front door

with Mr. Spicola... ." Matthews P. 107, lines 5-8.

"I was standing right there. I damn near grabbed the

phone and I almost said, Hey, come on. Tell the

truth." Matthews P. 107, lines 20-22.

(Question: You assumed it was Mr. Canti on the other

end of the phone?)

"He called him by name on the phone, by God. He said

I didn't remember anything, and I could not take

part." Matthews P. 107, line 23 and P. 108, lines 1-3.

"That upsets me when he told him that on the phone,

because that was a lie." Matthews P. 108, lines 7-8.

(Question: You have not run into Mr. Blatner--)

"I don't like the man and I don't want to see him.

Matthews P. 109, lines 15-16.

(Question: Is that because of what happened when you

went down there to look at the machine and what he

said to Mr Canti?)

"I don't like a liar. That's what he was.

Matthews P. 109, lines 17-19.

(Question: Because of what he said over the phone

to whom you presume was Mr. Canti?)

"I just don't believe in the way things were being

done that way, sir. I just don't like it."

Matthews P. 109, lines 20-23.

The Court cannot countenance the shell game played by

Moench.

Summary judgment will be granted to the plaintiffs on

defendants' liability. It will be for the jury to decide

to what extent, if any, plaintiff may be liable.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO

FURTHER ORDER SHALL BE NECESSARY, EXCEPT THAT PLAINTIFF

MUST SUBMIT FOR THE APPROVAL AND FILING BY THIS COURT OF A

LIST OF THE PAPERS SUBMITTED BY BOTH PARTIES ON THIS

MOTION.

Dated: November , 1995

Mayville, New York

____________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1995, and

duly entered in the office of the Clerk of the County of

Chautauqua on .