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TRAVIS v. FREEDMAN

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 14, 1994

DRAKE W. TRAVIS and MARLENE TRAVIS, Plaintiffs, against HERBERT D. FREEDMAN, JUDITH P. FREEDMAN, BRUCE STOUTER individually and d/b/a CHILD'S PLAY or STOUTER CONSTRUCTION and STOUTER CONSTRUCTION CO., INC., Defendants.

The opinion of the court was delivered by: VINCENT L. BRODERICK

MEMORANDUM ORDER

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Plaintiffs in this personal injury suit, brought based upon diversity of citizenship, have moved for reconsideration of the memorandum order of December 2, 1994 which granted the motion of Herbert and Judith Freedman (the "Freedmans") for summary judgment dismissing the complaint against them. The motion is granted and the previous decision is reaffirmed for the reasons set forth in the memorandum order of December 2, 1994 and the additional reasons set forth below.

 II

 First, plaintiffs stress that as indicated in the prior order "there are numerous detailed factual disputes." Those disputes are, however, not sufficient to create a genuine issue of material fact under Fed.R.Civ.P. 56.

  Second, plaintiffs point out that the prior order focused principally upon plaintiffs' claims under the New York Labor Law which may permit strict liability to be imposed. They contend that the Freedmans' papers did not give them adequate notice that two other claims (for ordinary negligence and malicious conduct undermining proper performance of the contract for construction work) were challenged under Fed.R.Civ.P. 56. Plaintiffs, whether or not surprised by the December 2, 1994 ruling, *fn1" have had in any event a clear opportunity to submit any previously unargued points or unsubmitted evidence through their motion for reconsideration, and have taken advantage of that opportunity.

 Only an additional argument, but no additional factual material, has been set forth by reference to an affirmation of plaintiffs' counsel (which cannot be and is not based on direct personal knowledge). According to the additional contention set forth, the Freedmans interfered with the performance of the construction contract in bad faith, and asked for extra work outside the scope of any prior contract, which placed such pressure on Mr. Travis that he was accident prone and fell when stepping on an undsteady support. No significant evidence supporting these contentions has been provided.

 Plaintiffs' argument is "implausible," requiring its proponents to "come forward with more persuasive evidence to support their claim than would otherwise be necessary." Matsushita Electric Industrial Co v. Zenith Radio, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). No such evidence has been submitted.

 No adequate factual basis for any of plaintiffs' claims has been presented sufficient to survive under Fed.R.Civ.P. 56, and none has been established in plaintiffs' submission in support of reconsideration.

 SO ORDERED.

 Dated: White Plains, N.Y.

 December 14, 1994

 VINCENT L. BRODERICK, U.S.D.J.


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