Derienzo v. Metropolitan Transp. Authority

404 F.Supp.2d 555

George DERIENZO Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY and Metro-North Commuter Railroad, Defendants.

No. 01 Civ. 8138(PKL).

United States District Court, S.D. New York.

December 13, 2005.

Cahill, Goetsch & Maurer P.C., Croton on Hudson, NY, Ira M. Maurer, for Plaintiff George Derienzo.

Hoguet Newman & Regal, LLP, New York City, Laura B. Hoguet, Ira J. Lipton, Luisa K. Hagemeier, for Defendants Metropolitan Transportation Authority and Metro-North Commuter Railroad.

OPINION AND ORDER

LEISURE, District Judge.

Plaintiff, George Derienzo, brings this action against defendants Metropolitan Transportation Authority ("MTA") and Metro-North Commuter Railroad ("Metro-North") pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (2000), alleging personal injuries sustained from slipping and falling on a hazardous condition while on defendant Metro-North's property. Plaintiff alleges specifically that while working as an MTA police officer, he slipped on debris that had collected at the top of a staircase and, as a result, fell down the flight of stairs, injuring his back. Plaintiff claims that defendants failed to exercise reasonable care in informing him about, and protecting him from, a hazardous condition of which they were aware. Defendants now move for summary judgment¹ on two grounds first, that liability has not been established because the alleged accident was unforeseeable; and, second, that damages have not been established because plaintiff has failed to demonstrate that his injuries were caused by the fall. For the reasons set forth below, defendants' motion is granted and plaintiff's claims are dismissed.

BACKGROUND

I. Local Rule 56.1 Requirements

A party moving for summary judgment in this district is bound by Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Rule 56.1 Statement"), which requires a party to submit along with its other motion papers a separate statement of numbered material facts "as to which the moving party contends there is no genuine issue to be tried."² S.D. & E.D. N.Y. R. 56.1(a). Correspondingly, the opposing party is required to submit a counterstatement responding to each numbered paragraph in the moving party's statement, and any additional paragraphs setting forth other material facts as to which the opposing party contends there is a genuine issue to be tried ("Counterstatement"). Id. at (b). While defendants included a Rule 56.1 Statement with their motion papers, plaintiff failed to file the required Counterstatement. Local Rule 56.1 provides that where the opposing party does not specifically controvert an asserted material fact of the moving party, such fact is deemed to be admitted for purposes of the motion. Id. at (c). The Second Circuit held in Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003), that uncontroverted assertions of fact shall be deemed to be admitted: "If the opposing party ... fails to controvert a fact ... set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted." See also Dervin Corp. v. Banco Bilbao Vizcaya Argentaria, S.A., No. 03 Civ. 9141, 2004 WL 1933621, at *8 (S.D.N.Y. Aug. 30, 2004) (Leisure, J.) ("[I]f ... a counter statement is not filed, the facts in the moving parties['] Rule 56.1 statement are deemed admitted by the opposing party." (citing Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir.1998))).³

Notwithstanding the Court's admission of defendants' uncontroverted facts, defendants' motion will not be automatically granted, because under Giannullo, "`[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law.'" 322 F.3d at 140 (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir.2001)). The Giannullo Court went on to state that because "`a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record,'" id. (quoting Holtz, 258 F.3d at 74), defendant remains obligated to demonstrate that no genuine issue of material fact exists to warrant a trial, id. If defendant fails to set forth adequate assertions of undisputed facts, supported by admissible evidence in the record, summary judgment must still be denied, as plaintiff "is not required to rebut an insufficient showing." Id. at 140-41; see 24/7 Records, Inc. v. Sony Music Entm't, Inc., 429 F.3d 39, 45-46 (2d Cir.2005) (noting that where a defendant moving for summary judgment, who does not maintain the burden of proof at trial, fails to show an absence of evidence supporting plaintiff's claims, and plaintiff does not oppose the motion with any evidence, summary judgment should be denied, "`for the non-movant is not required to rebut an insufficient showing'" (quoting Giannullo, 322 F.3d at 140-41)); Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) ("This Court has made clear, however, that where the non-moving party `chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.'" (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001))).

However, after holding that defendants' assertions were required to be supported by admissible evidence in the record, the Giannullo Court addressed in a footnote the dissent's argument that the majority's reading of Local Rule 56.1 was inconsistent with Rule 56 and the Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Giannullo, 322 F.3d at 141 n. 2. The Court's majority agreed with the dissent's position that under Celotex "a defendant may move for summary judgment on the ground that the plaintiff has failed to adduce any evidence of an element of plaintiff's claim, and if the plaintiff fails in response to contest this assertion or adduce such evidence, defendant, without more, will prevail." Id. However, it held that Local Rule 56.1's requirement that a movant's assertions be supported by admissible evidence in the record was "wholly distinguishable" from the case before it because defendant was making affirmative assertions in his Rule 56.1 Statement to support summary judgment in his favor.⁴ Id. Because defendant was making affirmative assertions, rather than moving "on the ground that the plaintiff ha[d] failed to adduce any evidence of an element of plaintiff's claim," it was required to support its assertions with admissible evidence. Id.

Some district courts in the Second Circuit have since followed the Giannullo Court's distinction between a movant that makes affirmative assertions, such as the Giannullo defendants' assertions that would justify a facially defective arrest, and a movant that seeks summary judgment on the ground that the non-movant failed to produce any evidence supporting an element of its claim. See, e.g., Feurtado v. City of New York et al., 337 F.Supp.2d 593, 599 (S.D.N.Y.2004) (holding that while Giannullo stated that a summary judgment motion should be denied where the movant does not meet its burden by producing admissible evidence, the decision "did not purport to contradict Celotex's holding that in fact a movant is not required to provide admissible evidence in cases where the movant does not bear the burden of proof on the issue that is the subject of its motion"); Webster v. The City of New York et al., 333 F.Supp.2d 184, 207 (S.D.N.Y.2004) (citing Giannullo in support of the proposition that where "[d]efendants ... have not affirmatively asserted the existence of a particular factual scenario in support of their motion for summary judgment ... but have, instead, sought to demonstrate that there is an absence of evidence to support Plaintiffs' claim by outlining the purported flaws" in plaintiffs' claim, defendants were not required to adduce admissible evidence). Other district courts have not addressed the Giannullo Court's distinction and instead cite Giannullo for the proposition that a summary judgment motion must be denied if the movant fails to meet its burden of producing admissible evidence in support of its assertions under Local Rule 56.1 See, e.g., Wilson v. New York City Dep't of Transp., No. 01 Civ. 7398, 2005 WL 2385866, at *4, 2005 U.S. Dist. LEXIS 21620, at *10 (S.D.N.Y. Sept. 28, 2005) ("Although Local Rule 56.1(c) provides that non-controverted material facts are to be deemed admitted, when considering an unopposed motion the Second Circuit requires district courts to confirm that factual statements are adequately supported by evidence in the record."); Rikhy v. AMC Computer Corp., No. 01 Civ. 7007, 2003 WL 1618529, at *3 (S.D.N.Y. Mar. 28, 2003) ("In light of the Second Circuit's recent opinion in [Giannullo,] this Court notes that each paragraph in defendants' Rule 56.1 Statement relied on by this Court contains `citation[s] to the admissible evidence of record supporting each [allegedly undisputed] fact.'" (citing Giannullo v. City of New York, 322 F.3d 139, 140 n. 2 (2d Cir.2003) (brackets in original))).

In this case, defendant is moving for summary judgment on the ground that, inter alia, plaintiff has failed to establish a genuine issue of material fact as to foreseeability, an element of a FELA claim. See Sinclair v. Long Island R.R., 985 F.2d 74, 77 (2d Cir.1993) (stating that in FELA actions, "`[p]laintiffs are ... required to prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation'" (citing Robert v. Consol. Rail Corp., 832 F.2d 3, 6 (1st Cir.1987))). Consequently, under Giannullo, this Court need only require defendant to point out that plaintiff has failed to proffer any evidence of an element of...