STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
LYNNE MARIE KRUSE AND AMY CATHERINE
MILLER, AS ADMISTRATRICES OF THE ESTATE
OF MICHAEL J. MILLER, Deceased,
-vs- Index #G-14970
HILMAN KELLY COMPANY AND/OR ITS
SUCCESSOR IN INTEREST, BAASH & ROSS,
A DIVISION OF MARTIN DECKER COMPANY,
A DIVISION OF COOPER INDUSTRIES;
MARTIN DECKER COMPANY, A DIVISION OF
COOPER INDUSTRIES; COOPER INDUSTRIES;
B.J. MACHINERY, A DIVISION OF HUGHES
TOOL COMPANY, USA; VARCO B.J. OIL
TOOLS, SUCCESSOR IN INTEREST TO B.J.
MACHINERY; BAKER HUGHES INCORPORATED;
AND B.J. POWER TONGS,
CHARLES EDWARD FAGAN, ESQ.
HURWITZ & FINE, P.C.
(Dan D. Kohane, Esq. of
Counsel) for Defendants
Hillman Kelly, Baash Ross,
Martin Decker & Cooper Ind.
CONNORS & VILARDO
(Kevin A. Ricotta, Esq.
of Counsel) for Defendants
B.J. Machinery & Baker
JAECKLE, FLEISCHMANN & MUGEL
(Howard S. Rosenhoch, Esq.
of Counsel) for Defendant
JOHN L. GOODELL, ESQ.
for Defendant Varco,
B.J. Oil Tools
DECISION AND ORDER
1. THE BJ MOTIONS
In December 1993, the Court reserved on motions for summary judgement motions made by BJ Machinery and BJ Power tongs. Those motions have been renewed.
The motions are granted. There is no basis for holding in these parties. There is no evidence that reveals any connection or relationship on the part of these 2 defendants to Plaintiff's injury. All the credible evidence indicates his hand and arm were injured when he was using a pair of Hilman Kelly power tongs.
On a summary judgement motion, the opposition has the obligation to come forward with some kind of evidence linking the defendants with the injury. There no evidentiary proof introduced in all the years involved in this litigation.
Plaintiff introduced photos of the tongs that caused the injury. The tongs have imprinted on them Hilman Kelly. Plaintiff, himself, and his supervisor both testified at EBTs that the tongs were HILMAN KELLY tongs.
BJ Machinery & BJ Power Tongs have never made HILMAN KELLY tongs or had anything to do with them. All agree that HK parts are not interchangeable with BJ parts.
Plaintiff's atty bases his entire suit against these two defendants on a 9/6/89 letter received in pre-suit discovery from Bruce Zeftel, Plaintiff's employer's attorney who wrote "I am advised by Berea that the power tongs were most likely manufactured by BJ Machinery, Division of Baker Hughes Co...". The letter recites "my contact believes...". Apparently Berea was a corporation. At no time does Zeftel or plaintiff or plaintiff's counsel ever identify Zeftel's "contact".
It would appear to this Court that in the five years since plaintiff's counsel received this letter that he would have at least identified the "contact" or someone at Berea for something stronger than the Zeftel letter. It has no evidentiary value, is only hearsay, and was written by someone who lacked personal knowledge.
Furthermore, plaintiff's supervisor testified that no BJ equipment was in use at the scene of the accident. See Exh J.
On 3/30/92, plaintiff was served with a notice to produce by BJ. Nothing was produced. Plaintiff replied that they were not responding due to "privilege." See Exh "E" of motion 14 by BJ Power Tongs. This means no evidence has been introduced to link BJ to injury.
The plaintiff has had ample time but has not pursued further discovery against BJ these past several years, albeit part of the reason was due to actions of one or more defendants.
No issue of fact has been raised by plaintiff - nothing more than the remotest of speculation. The accident was 10/16/86.
The facts in WHELAN v GTE SYLVANIA, INC., 182 AD2d 446, are similar to this case. Summary judgement was granted, the court holding that a "bald assertion" that the product was manufactured by Defendant was insufficient to raise an issue of fact. All we have here is a bald assertion accompanied by speculation.
See also EDDY v TOPS FRIENDLY MKTS, 91 AD2d 1203, affd 59 NY2d 692.
There are no conflicting facts here. Even when viewed most favorably to plaintiff, all that can be seen is that plaintiff's employer owned some BJ tongs, but they weren't involved in the accident.
Discovery is not justified when there is no evidentiary proof in admissible form linking Defendant to the accident. An attorney's affidavit as is the case here is insufficient to defeat a summary judgement motion.
"Mere hope that somehow Plaintiff will uncover evidence that will prove their case is not enough" to prevent a court from granting summary judgement. BABCOCK v ALLEN, 115 AD2d 301, 496 NYS2d 119.
It is now 10 months since the motion, and nothing has been submitted by Plaintiff or unearthed in discovery to change what was written last December 1993; there is no basis to hold them in.
In view of the history of these motions and these defendants, the Court grants the motions of BJ Machinery and BJ Power Tongs without costs or counsel fees.
THE VARCO MOTION
After considerable inactivity, VARCO B.J. now moves for dismissal of the action against them, or in the alternative, for a protective order limiting discovery.
Varco purchased the entire power tong business from Cooper Industries which places them in direct successor in interest to Hilman Kelly.
Varco argues that the equipment causing plaintiff's injury was not made, designed, marketed by or associated with Varco; that the fact that Varco took over the assets and business of the company that manufactured and marketed the machine could not a basis for liability unless Varco assumed such liability by contract.
Varco presented portions of the contract its purchase of the business in which Varco rejected and the seller, Cooper, retained liability. The plaintiff is not bound by such an agreement.
Moreover, at this late date, the Court would preclude Varco from using that contract language to escape liability.
The way this entire case has proceeded is a disappointing effort in the search for justice. Plaintiff's counsel doesn't answer letters or phone calls on key questions and is responsible for some of the delays; defendants seem to be going out of their way to avoid or hamper discovery; one defendant takes a low key position for years, and after motions for discovery now wants a protective order limiting discovery or dismissal on a theory that an agreement between two parties is binding on a third.
The injury occurred October, 1986. The action was commenced in 1989. Fortunately, plaintiff was deposed in March 1992 because within a few months, he died. There is no excuse for a delay of this magnitude.
Each side blames the other for delays; for lack of cooperation; for diversionary tactics. Unfortunately, each of them is right.
To insure that this case will be tried in 1995, the Court schedules this case for trial May 12, 1995; directs that all discovery be completed and all expert disclosure be exchanged 30 days before trial; directs that plaintiff file a note of issue 30 days before trial.
Plaintiff's counsel is to draft a proposed order of preclusion for any items defendants have not produced.
The motion of Varco B.J. is denied, with $100 costs.
Dated: October 31, 1994
Mayville, New York
SUPREME COURT JUSTICE