SUPREME COURT: COUNTY OF CHAUTAUQUA
and RUTH MAJCHER
vs Index #H-02396
FEDERAL MACHINE COMPANY
FEDERAL MACHINE COMPANY,
MOENCH TANNING COMPANY, INC.
SEEGERT, & ESTOFF, P.C.
(Michael R. Drumm, Esq.
of Counsel) for Plaintiffs
McCARVILLE, & FRIZZELL, P.C.
(Gerald J. Whalen, Esq.
of Counsel) for Defendant
(John F. Canale, Esq.
of Counsel) for Third-Party Defendant
DECISION AND ORDER
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
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
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
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
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
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
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
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
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
Dated: November , 1995
Mayville, New York
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 .