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February 25, 2000


The opinion of the court was delivered by: Kahn, District Judge.


The lead Plaintiff has brought suit on the basis of physical injuries he suffered when a steel post he was installing broke. The Court must determine whether there is a genuine issue of material fact regarding the question of which one of two Defendants manufactured that post. The Court also weighs whether it must impose an adverse outcome on a movant that submitted a defective statement of material facts pursuant to its cross-motion for summary judgment, and, if so, what consequences are commensurate with the defects in the submitted statement.

I. Background

Plaintiff Mr Joseph J. Meaney worked for the New York State Thruway Authority as a construction equipment light operator ("CELO") at the time of the incident underlying this action. (See Defendant Franklin Steel Co.'s Notice of Mot. ("Franklin Notice Mot.") Ex. M (Joseph Meaney Examination Before Trial ("Meaney EBT") (30 Oct. 1998)) at 10 lines 16 to 11, line 10 (Doc. 32, 30 July 1999).) Plaintiffs claim that on or about 1 June 1994, Mr Meaney and a coworker were replacing a steel delineator post and reflector by the side of the Thruway, in the vicinity of the Selkirk interchange ramp. (Id. at 21 lines 7 to 20, 26 lines 2 to 5.) Mr Meaney drove a new delineator post into the ground to replace a damaged post. (Id. at 26 lines 22 to 27, line 5.) When he finished driving in the new post, it was slightly off vertical. (Id. at 27 lines 5 to 8.) As was the workers' customary practice, he pulled on the post to straighten it. (Id. at 23 lines 15 to 18, 27 lines 8 to 9.) The post broke, struck him, and knocked him over. (Id. at 27 lines 9 to 12.) Plaintiffs claim that through this accident, as a result of Defendants' negligence, Mr Meaney has suffered personal injury and pain and suffering, incurring damages in the sum of $500,000, and his wife, Plaintiff Ms Elizabeth Meaney, has suffered loss of "the society, services, companionship and consortium of her husband and was otherwise damaged," incurring damages in the sum of $100,000. (Notice Removal Ex. A (N.Y.Sup.Ct. Compl. ("Compl.") (15 May 1997)) at ¶¶ 14-22, 37 (Doc. 1, 27 June 1997).)

Plaintiffs filed this action with the State of New York Supreme Court for the County of Columbia on 19 May 1997 (Index No. 8228-97). They stated causes of action arising in negligence, strict product liability, and breach of warranty. (See Compl.) Defendant CHS Acquisition Corp. ("CHS") was served with the Complaint on 3 June 1997, and pursuant to 28 U.S.C. § 1441, 1446-1451 removed the action to this Court by its Notice of Removal filed 27 June 1997. (Doc. 1, supra.) This Court has jurisdiction under 28 U.S.C. § 1332, because the action is between citizens of different states, and the matter in controversy exceeds $75,000. Plaintiffs seek damages as stated supra pp. 105-06, costs and disbursements of this action, and such other relief as the Court may deem just and proper.

Defendant Marion Steel Co. ("Marion Steel" or "Marion") subsequently filed a cross-claim against co-Defendants Franklin Steel Co. ("Franklin Steel" or "Franklin") and CHS, seeking common law or contractual indemnification or contribution from and judgment over against those co-Defendants for all or part of any judgment obtained by Plaintiffs in this action. (See Marion Answer at 4-5*fn1 (Doc. 14, 13 Feb. 1998).)

Thereafter, all parties stipulated and agreed to the dismissal of this action, together with all cross-claims, with prejudice, as against CHS. The agreement was so ordered and signed by the Court. (See Stipulation and Order of Discontinuance and Dismissal (Doc. 19, 31 July 1998).)

II. Motions

Now before the Court are Defendant Franklin Steel's motion that the Court so order a stipulation of discontinuance and dismissal (see Franklin Notice Mot. Ex. T) pursuant to Federal Rules of Civil Procedure 21 and 41, and award summary judgment in favor of Franklin Steel against Defendant Marion Steel's cross-claim for common law and contractual contribution and indemnification; and Defendant Marion Steel's cross-motion for summary judgment against Plaintiffs complaint, pursuant to Federal Rule of Civil Procedure 56, and for denial of co-Defendant Franklin's motion for summary judgment against Marion's cross-claim. (See Marion Notice Cross-Mot. Summ. J. (Doc. 35, 30 July 1999).)

A. Standards of Decision

1. Dismissal

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for "failure to state a claim upon which relief can be granted," must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (Black, J.). In assessing the sufficiency of a pleading, "all factual allegations in the complaint must be taken as true," LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991), and all reasonable inferences must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988) (applying the principle of contruing inferences in favor of plaintiff), cert. denied sub nom. Soifer v. Bankers Trust Co., 490 U.S. 1007, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989).

[C]onsideration is limited to the factual allegations in [the] complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' ...

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