Fuller et al v. Summit Treestands, LLC

Filing 86

ORDER granting in part and denying in part 70 Motion for Summary Judgment; denying 71 Motion for Summary Judgment; adopting Report and Recommendation re 83 . Signed by Hon. Richard J. Arcara on 6/30/2009. (JMB)

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U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK R IC K Y A. FULLER and T H E R E S A A. FULLER, Plaintiffs, v. ORDER 07-CV-330A SUMMIT TREESTANDS, LLC, D e fe n d a n t. T h is case was referred to Magistrate Judge Jeremiah J. McCarthy, p u rs u a n t to 28 U.S.C. 636(b)(1), on May 30, 2007. On February 27, 2009, d e fe n d a n t filed two summary judgment motions: a motion for summary judgment a s to plaintiffs' claims for failure to warn, manufacturing defects, and breach of e xp re s s and implied warranties (Docket No. 70); and a motion for summary ju d g m e n t as to proximate cause (Docket No. 71). On May 11, 2009, Magistrate J u d g e McCarthy filed a Report, Recommendation and Order, recommending that d e fe n d a n t's summary judgment motions be granted in part and denied in part.1 In his Report, Recommendation, and Order, Magistrate Judge McCarthy also is s u e d orders as to plaintiffs' pending motion to compel (Docket No. 59) and d e fe n d a n t's two motions in limine (Docket Nos. 72, 75). The Court need not address th e s e orders, as the motions are non-dispositive and the parties did not appeal the o rd e rs to this Court. 1 O n May 26, 2009, defendant filed objections to those portions of the R e p o rt, Recommendation and Order that addressed plaintiffs' failure to warn c la im . Plaintiffs filed a response to defendant's objections on June 9, 2009 that re q u e s te d adoption of the Report, Recommendation and Order. Oral argument o n the objections was held on June 17, 2009. Pursuant to 28 U.S.C. 636(b)(1), this Court must make a de novo review o f those portions of the Report, Recommendation, and Order that addressed d e fe n d a n t's summary judgment motions and to which defendant objected. Upon a de novo review of those portions of the Report, Recommendation and Order, a n d after reviewing the submissions and hearing argument from the parties, the C o u rt adopts the proposed findings of the Report, Recommendation, and Order a s to plaintiffs' failure to warn claim. The Court also adopts those portions of the R e p o rt, Recommendation, and Order to which no objections were made. Accordingly, for the reasons set forth in Magistrate Judge McCarthy's R e p o rt, Recommendation, and Order: (1 ) D e fe n d a n t's motion for summary judgment (Docket No. 70) is granted to the extent of dismissing plaintiffs' manufacturing defect and express warranty c la im s , but otherwise denied; and (2 ) D e fe n d a n t's motion for summary judgment (Docket No. 71) d is m is s in g the complaint for lack of proximate cause is denied. 2 T h e parties are directed to appear before the Court on Friday, July 10, 2 0 0 9 at 9:00 a.m. for a status conference to set a trial date. SO ORDERED. s/ Richard J. Arcara HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: June 30, 2009 3

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