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March 11, 1993



The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is a diversity action in negligence arising out of injuries allegedly caused by a rear-end collision on September 5, 1988, at the intersection of Second Avenue and Saint Mark's Place in the borough of Manhattan in New York City, New York. Plaintiffs Leticia Ortiz ("Ortiz") and Jesse Guevara ("Guevara") have moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is denied.


 Plaintiff Ortiz is a resident of Massachusetts who was visiting New York City on September 5, 1988, the day of the accident. Defendant David E. Rosner ("Rosner") is a resident of New Jersey who, at the time of the accident, was an employee of defendant Filter Cab Corporation ("Filter Cab"), a New York Corporation. At the time of the accident, plaintiff Ortiz was a passenger in her own vehicle which was being driven by a third party, Joan Straussman. Defendant Rosner was driving a medallion taxi owned by defendant Filter Cab. Both Ortiz's vehicle and defendants' taxi were southbound on Second Avenue when the taxi struck Ortiz's vehicle in the rear while it was stopped at the intersection of Second Avenue and St. Mark's Place.

 Plaintiff Ortiz seeks damages against defendants in the sum of $ 750,000 for personal injuries sustained due to the alleged negligence of defendants in the ownership, operation, maintenance and control of their vehicle. Plaintiff Guevara, the husband of plaintiff Ortiz, seeks $ 250,000 for the loss of his wife's services as a result of the accident. Plaintiffs have now moved for an order granting summary judgment in plaintiffs' favor on the issue of liability and directing an assessment of plaintiffs' damages.



 Rule 56(c) of the Federal Rules of Civil procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Publishing Co., 949 F.2d 576, 580 (2d Cir. 1991). Summary judgment "is appropriate only 'after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Thornton v. Syracuse Savings Bank, 961 F.2d 1042, 1046 (2d Cir. 1992) (quoting Celotex, 477 U.S. at 322).

 "In deciding whether to grant summary judgment all inferences drawn from the materials submitted to the trial court are viewed in a light most favorable to the party opposing the motion. The nonmovant's allegations are taken as true and it receives the benefit of the doubt when its assertions conflict with those of the movant." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Id. accord Taggart v. Time Inc., 924 F.2d 43, 46 (2d Cir. 1991); see also Lang, 949 F.2d at 580 ("In determining how a reasonable jury would decide, the court must resolve all ambiguities and draw all inferences against the moving party."); Binder v. Long Island Lighting Co. 933 F.2d 187, 191 (2d Cir. 1991) ("Viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate.").

 The substantive law governing the case will identify those facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. "The judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

 The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying which materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Once a motion for summary judgment is properly made, however, the burden then shifts to the non-moving party, which "'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). "Conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,' and more than 'some metaphysical doubt as to the material facts.'" Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252 and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)), cert. denied, 111 S. Ct. 2041 (1991). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the notion through mere speculation or conjecture." Western World Insurance Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quotations omitted); see also Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138 (2d Cir. 1992) ("[The Court must] consider the record in the light most favorable to the nonmovant. However, the non-movant may not rest upon the mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial.") (quotation and citations omitted).


 In a diversity case such as this one, the New York substantive law of negligence determines the facts that are material. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Under New York law, "to prove a prima facie case of negligence, the plaintiff must establish the existence of a duty on the defendant's part to the plaintiff, the breach of the duty, and that the breach of the duty was a proximate cause of an injury to the plaintiff." Gordon v. Muchnick, 180 A.D.2d 715, 715, 579 N.Y.S.2d 745, 746 (2d Dep't 1992); see also Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 535, 441 N.Y.S.2d 644, 648 (1981). Summary judgment is difficult to obtain in negligence actions because whether conduct is "negligent" is a factual determination in all but the most extreme situations. See INA Aviation Corp. v. United States, 468 F. Supp. 695, 699 (E.D.N.Y. 1979) ("As a general proposition, negligence questions are properly resolved at trial because, upon a motion for summary judgment, a court may not try issues of fact; it may only determine whether there are factual issues to be tried."), aff'd, 610 F.2d 806 (2d Cir. 1979); see also Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y. 7B, C.P.L.R. 3212:8, at p. 316 (1992) ("The very question of whether the defendant's conduct amounts to 'negligence' is inherently a question for the fact-trier in all but the most egregious instances."). In a negligence suit, "the plaintiff will generally be entitled to summary judgment only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiff's conduct either was not really ...

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