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March 31, 2000


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


In a thorough and thoughtful Report and Recommendation, Magistrate Judge Dolinger has recommended that defendants' motion for summary judgment be granted as to all claims against John Mulvehill. He has recommended that the motion be granted as to all claims against Urban Mulvehill except the portion of plaintiffs' breach of fiduciary duty claim which alleges that Urban Mulvehill failed to disclose to plaintiff that he was receiving a portion of John Mulvehill's fee. Finally, he has recommended that John Mulvehill's motion for sanctions and preclusion of the use of certain evidence be denied. No objections have been filed within the ten days provided by 28 U.S.C. § 636 (b)(1).

After carefully reviewing the attached Report and Recommendation, I accept it in its entirety.



DOLINGER, United States Magistrate Judge.

To The Honorable Miriam Golden Cedarbaum, District Judge:

Following a car accident in which his wife was killed and his son injured, Richard Schweizer retained attorney John Mulvehill to pursue a wrongful-death and personal-injury lawsuit against the driver of the other vehicle involved in the collision and the driver's employer. After a suit was filed in federal court, the parties reached a settlement by which the plaintiff was to receive approximately $1 million.

On behalf of his son and himself, Schweizer now sues his attorney in that previous action and the attorney's cousin, Urban Mulvehill, Esq., with whom John Mulvehill was to share fees on the wrongful-death claim. Following completion of discovery, defendants have moved for summary judgment on all of plaintiff's claims. In addition, John Mulvehill seeks an order (1) precluding plaintiff from using certain salary information obtained in response to a non-party subpoena and (2) imposing sanctions on plaintiff in connection with the subpoena.

A. Plaintiff's Claims

Plaintiff filed this lawsuit in December 1995, asserting five claims against John and Urban Mulvehill, all related to their representation of him in Schweizer v. Skyway Transportation, 90 Civ. 0979 (S.D.N.Y.) (JFK) ("the underlying action"). First, Schweizer alleges that both attorneys committed legal malpractice and "gross legal malpractice" (1) by negligently preparing and prosecuting the underlying action, (2) by failing to inform him that he might compensate John Mulvehill other than through a one-third contingency arrangement, and (3) by failing to disclose conflicts of interest, presumably including the fact that Urban Mulvehill would share a part of the contingency fee recovered and that John Mulvehill was employed by an insurance company. (See Compl. ¶¶ 59, 74-78).

Plaintiff's second claim is for breach of contract. He asserts principally that John Mulvehill breached the terms of the retainer agreement by settling the underlying action for $1 million when he had promised to prosecute the case for more than that. (Id. at ¶ 80). He also asserts that the retainer agreement was breached for the reasons stated in his malpractice claim. (Id. at ¶¶ 81-84).

Third, plaintiff asserts a claim for fraud, alleging that the defendants made misrepresentations to him, that he relied upon those misrepresentations, and that he was thereby damaged. (Id. at ¶¶ 86-88). Specifically, he alleges that defendants either misstated or withheld the following information: (1) they did not disclose that there were fee arrangements besides a contingency by which plaintiff could have agreed to pay John Mulvehill; (2) John Mulvehill falsely stated that he would prosecute the underlying action for more than the $1 million limit of the insurance policy; (3) defendants concealed conflicts of interest in handling his case; (4) defendants misled plaintiff into believing that the underlying action was a more complex case than it was; (5) defendants misrepresented that it would be impossible to recover more than $1 million from the defendants in the underlying action; (6) defendants falsely asserted that plaintiff had made statements that he had not; and (7) defendants failed to disclose that Urban Mulvehill would receive a fee for referring the underlying action to John Mulvehill. (Id. at ¶ 86 (A-G)).

Fourth, plaintiff asserts that defendants violated section 487 of the New York Judiciary Law by misleading the Surrogate's Court through the presentation of false information and the omission of material information. (Id. at ¶¶ 90-92). These alleged misrepresentations and omissions are the same as those alleged in connection with the fraud claim. (Id. at ¶ 90 (A-G)).

Finally, plaintiff makes a claim for breach of fiduciary duty. He alleges that defendants were in a fiduciary relationship with him and that by acting in their own interests in settling the case for the policy limit, and by withholding information, including the existence of a referral fee and John Mulvehill's employment, the attorneys breached that duty. (Id. at ¶¶ 94-100).

Plaintiff demands $1 million in compensatory damages for each of his claims and $3 million in punitive damages for each claim except the one for breach of contract. (Id. at 27-28 (¶¶ 1-5)).

B. Defendants' Summary Judgment Motion

Defendants have filed a motion seeking summary judgment on all of plaintiff's claims. First, defendants assert that the claims of legal malpractice, breach of contract and breach of fiduciary duty are barred, under the doctrine of collateral estoppel, because the fairness of the attorney's fee has already been determined by the Surrogate's Court of Orange County when it approved the settlement in the underlying action. (Def's Mem. at 17-19).

Third, defendants contend that because the results obtained in the underlying action were in the client's best interest, plaintiff has failed to establish a breach of fiduciary duty. (Id. at 25).

Fourth, defendants contend that insofar as plaintiff's allegations of fraud and breach of contract are indistinguishable from the malpractice claim, they are barred under New York law, (Id. at 30-31). Alternatively, they argue that, in any event, the fraud claim cannot be sustained because plaintiff is unable to show injury from any alleged misrepresentations or omissions. (Id. at 26-29).

Fifth, defendants contend that plaintiff cannot establish that they violated New York's Judiciary Law (id. at 32-33), and that, in any event, this claim is barred by the statute of limitations. (Id. at 34-35). Finally, defendants contend that plaintiff's claim for punitive damages should be dismissed.

We conclude that plaintiff has failed to demonstrate a triable issue of material fact with respect to any of his claims, except the claim that Urban Mulvehill breached his fiduciary duty in failing to disclose that he would share in the contingency fee payable to John Mulvehill.

C. Facts and Prior Proceedings

On May 16, 1989, plaintiff's wife, Karen Schweizer, was killed when a tractor-trailer crossed the center line of a two-lane roadway and hit her vehicle head-on. (Compl. at ¶ 11; Decl. of Cheryl Riess Curtis, Esq., dated April 6, 1999 ("Pl. Decl.1"), Ex. 1 (police accident report) at second page). Mrs. Schweizer was 35 at the time and a homemaker, although she had apparently planned to go back to work when her son started school. (See Dep. of Richard T. Schweizer at 5-6, 11-12). Plaintiff's son, Scott Schweizer, then five years old, was a passenger in his mother's car when the accident occurred. (See Compl. at ¶ 12). He suffered a broken arm and other minor injuries, as well as some degree of psychological trauma. (See Pl. Decl. 1, Ex. 4 (hospital report) & Ex. 7 (January 5, 1999 psychiatric evaluation by Dr. Lawrence Scheff); Decl. of Geoffrey W. Heineman, Esq., dated April 27, 1999 ("Def.Decl.2"), Ex. E (October 6, 1990 evaluation by Dr. Scheff)).

The tractor-trailer that was involved in the accident was owned by Skyway Transportation Incorporated ("Skyway"). (See Dep. of James J. Lenihan, President of Skyway, Jan. 6, 1998, at 42-43). It was insured for $1 million by American Reliance Insurance Companies ("Reliance"). (See id. at 43, 47; see also Pl. Decl. 1, Ex. 14 (Oct. 19, 1989 letter to J. Mulvehill from Lesley Klotz, Assistant Casualty Claims Supervisor for Reliance)).

At the second meeting with John Mulvehill, in September 1989, Schweizer expressed concern about what he correctly believed to be the $1 million limit of Skyway's insurance policy. According to plaintiff, he received some indication from Mulvehill that more than $1 million was potentially recoverable. (See Aff. of Richard T. Schweizer, sworn to April 6, 1999, at ¶ 2 (Mulvehill expressly represented that the policy limit was not a limit on recovery); Schweizer Dep. at 81, 165 ("Q: When did John Mulvehill promise you to prosecute the case for more than the $1 million policy? A: When we had our meeting on the 23rd of September 1989, he mentioned it was possible to hold the insurance company liable for an amount more that the million dollar policy limit."), 209 ("When I signed the retainer [John Mulvehill] led me to believe that it was possible to achieve a settlement greater than the limit — the assumed limits of the insurance policy, i.e. $1 million,"), 211 ("he said to me `Don't worry' [about the policy limit]"), 340, 516).

During his discussions with Mulvehill, Schweizer expressed his interest in retaining a lawyer on a more favorable basis than a flat one-third contingency fee. (See, e.g., Schweizer Dep. at 263; Dep. of John H. Mulvehill ("JHM Dep."), at 611 (Schweizer asked if John Mulvehill would consider a 30% contingency)). Mulvehill indicated that 33 1/2 percent was the standard fee, and that although Schweizer might be able to find a lawyer to take less than one-third, that was unlikely.*fn1 (Schweizer Dep. at 58; see also id. at 30 ("John [Mulvehill] said that all other personal injury attorneys have a one-third contingency fee, and he showed me the form") (emphasis added)). Schweizer's pursuit of either another attorney or a more favorable payment term was limited; he interviewed bne other attorney, who also proffered a standard one-third-fee form (see Schweizer Dep. at 65-66), before indicating that he wished to retain John Mulvehill.*fn2

Sometime after the first meeting with John Mulvehill, but before the second meeting in September 1989 — and the signing of the retainer — plaintiff received a settlement offer from American Reliance of at least $600,000.00.*fn3 (Compl. at ¶ 27; Schweizer Dep. at 71-72, 75, 78, 80; JHM Dep. at 697). Plaintiff understood the offer to be for cash — as opposed to any form of structured settlement — and decided not to accept it, choosing instead to retain John Mulvehill because, he alleges, Mulvehill had told him that he "shouldn't be concerned about the limits of the [insurance] policy in that it's possible to hold an insurance company liable for an amount greater than the limits of that policy." (Schweizer Aff. at ¶¶ 3, 8; Compl. at ¶¶ 38-39; Schweizer Dep. at 81).

During the time of Schweizer's preliminary negotiations with and subsequent representation by John Mulvehill, Mulvehill was working full-time as an attorney for Liberty Mutual Life Insurance Company, primarily defending its insureds. He had been a salaried employee of Liberty Mutual since 1961, in legal departments that bore the names, of the insurance company's most senior in-house counsel. (JHM Dep. at 156-58). From 1974 to 1991 Liberty Mutual's legal department operated under the name Mulvehill & O'Brien. (Id. at 200-01). Mulvehill also maintained a solo private practice, with a letterhead bearing his name and his home address. (See, e.g., Pl. Decl. 1, Ex. 24). In that practice, Mulvehill handled personal-injury cases as well as other legal matters. (See JHM Dep. at 202-07).

In 1991, when it came to the attention of Liberty Mutual that John Mulvehill was taking on cases beyond those he was handling for its insureds, the company asked Mulvehill to resign. (See Pl. Decl. 1, Ex. 26 (May 17, 1991, letter from A. Paul Goldblum to John W. Allen, Esq.) & Ex. 19 (copy of Liberty Mutual's no-outside-practice policy)). Plaintiff did not know of John Mulvehill's relationship with Liberty Mutual (see JHM Dep. at 369),*fn4 and asserts that had he known that Mulvehill had full-time employment and was primarily involved in defending personal-injury cases for an insurance carrier, he would not have retained him. (Schweizer Aff. at ¶¶ 5, 6).

Sometime after Schweizer retained John Mulvehill, Mulvehill and his cousin Urban Mulvehill agreed to an apportionment of any contingency fee in the underlying action whereby John Mulvehill would receive 80 percent and Urban 20 percent. (See JHM Dep. at 615; Retainer Statement, signed by Urban S. Mulvehill, Esq., dated Jan. 18, 1990).*fn5 John Mulvehill informed Schweizer that Urban would perform some legal duties with respect to the wrongful-death case (JHM Dep. at 370 (having told Schweizer "I would have conflicts in attending conferences or other scheduled meetings . . . and that I would be using the services of Urban Mulvehill on those occasions")), but Schweizer was never informed of Urban Mulvehill's financial interest in the contingency fee. (Schweizer Aff. at ¶ 4; Schweizer Dep. at 214).

Schweizer first became aware of this arrangement when he received a closing statement in February of 1992, following the Surrogate Court's approval of the Offer to Compromise, indicating that Urban Mulvehill was receiving approximately $63,000. (See Schweizer Dep. at 215, 233, 290). In the period between the retention of John Mulvehill and the settlement of the underlying action, plaintiff had repeated contacts with Urban Mulvehill and his firm, O'Neill, DiManno & Kelly, in connection with the underlying action. Specifically, meetings took place in the conference room at O'Neill, DiManno (id. at 309, 320); plaintiff picked up checks and other documents there (id. at 284), and was forwarded checks and. other documents by the firm (id. at 286); plaintiff received correspondence from Urban Mulvehill (id. at 292 (Urban Mulvehill advised plaintiff that the Surrogate had not yet acted on the application for approval of the compromise)); and many letters that plaintiff saw indicated that carbon copies were being sent to Urban Mulvehill. (See, e.g., id. at 281, 310, 312, 315). Plaintiff contends that he believed that John Mulvehill was merely keeping his cousin apprised of developments in the case (id. at 203 (as a "professional courtesy")), and that Urban Mulvehill's office was convenient to his own downtown office (id. at 117, 285, 287) and to the Southern District courthouse, where filings were made. (Id. at 93).

In November 1989 Richard Schweizer was appointed administrator of his wife's estate by the Surrogate's Court of Orange County. In February 1990, John Mulvehill, on behalf of Schweizer, filed a personal injury and wrongful death action in this Court against Skyway and George Bell, seeking damages of $23,500,000. (Def. Decl. 1, Ex. J (Compl. in Schweizer v. Bell, 90 Civ. 0979 (S.D.N.Y.) (JFK))).

Among the tasks that John Mulvehill performed in connection with the underlying action, he engaged in some investigation of Skyway's assets. (See JHM Dep. at 1216; Pl. Decl. 1, Ex. 23 (Aug. 23, 1990 letter from U. Mulvehill to J. Mulvehill conveying information regarding possible coverage by another insurance carrier and forwarding Dunn & Bradstreet report on Skyway)). At the time of the accident, Skyway's assets consisted of five trucks, a house trailer, a pick-up truck, tools and equipment (see Jan. 6, 1998 Lenihan Dep. at 51-55), and its debts consisted of taxes owed to the IRS and to the State of New Jersey. (See id. at 72, 120). It does not appear that it had liability coverage beyond the Reliance policy (see, e.g., Jan. 26, 1998 Lenihan Dep. at 43), although the records at the Interstate Commerce Commission indicated that Skyway was insured by Aetna for $750,000.00. (See id. at 43, 57; P1. Decl. 1, Ex. 23 (Aug. 23, 1990 letter from U. Mulvehill to J. Mulvehill)).

In 1993, two years after the settlement of the underlying action, Skyway was dissolved, and the company was re-incorporated as Highway Freight Lines Incorporated ("Highway"), apparently in an effort to reduce the amount of its insurance premium. (See Dep. of James J. Lenihan, July 30, 1998, at 43-44; pl. Decl. 1, Ex. 28 (Corporate Resolution of Skyway dated Aug. 6, 1993)). Skyway "sold" its five tractor-trailers to Highway for $50,000 and the proceeds were used to pay off tax liens, (See Jan. 6, 1998 Lenihan Dep. at 120, 130). A house trailer and pick-up truck were discarded due to age. (See id. at 53, 55).

As a consequence of the accident, the truck driver, George Bell, pled guilty to a violation of the New York Vehicle and Traffic Law and had his license revoked. (See Compl. at ¶ 13). He did not return to work and died a short time later. (See Jan. 6, 1998 Lenihan Dep. at 63-64). George Bell had no assets with which to satisfy a judgment. (See Schweizer Dep. at 154).*fn6

In the course of litigation, John Mulvehill retained the services of Thomas Kershner, an economist, in order to evaluate the economic loss resulting from the death of Karen Schweizer. The economist valued that loss, discounted to present value, at $1,042,462.*fn7 (Def. decl. 1, Ex. L (Appraisal of Economic Loss) at 23). Defendants in the underlying action also obtained an analysis of the economic loss, and their economist valued the loss, discounted to present value, at $357,975. (Id., Ex. M (Report of Edmund Mantell, PhD.) at 3).

In April 1991, Schweizer and the two Mulvehills met at the offices of O'Neill, DiManno & Kelly and discussed the underlying action. (See Schweizer Dep. at 133; USM Dep. at 394-98, 890-91). At the meeting they discussed the risks of going forward with the trial, the plaintiffs' and defendants' respective expert reports analyzing economic loss, the possibility that Skyway would present some evidence of contributory negligence on the part of Mrs. Schweizer, the evidence of her instantaneous death — affecting plaintiff's prospects of recovering for pre-impact terror — and the likelihood of being able to recover on a judgment in excess of the existing insurance coverage. (See USM Dep. at 395-96, 891; see also Schweizer Dep. at 145-53). At the conclusion of the meeting it was decided that plaintiff, by his attorneys, would send a "bad-faith letter"*fn8 to Reliance, demanding a settlement equal to Skyway's policy-limit. (See Schweizer Dep. 153-55; USM Dep. at 396). In May 1991, Reliance offered to settle the underlying action for $985,000. This sum reflected the $1 million limit of Skyway's policy, less $15,000 already paid to plaintiff for damage to his vehicle pursuant to no-fault insurance coverage. (Schweizer Dep. at 166, 171, 172, 176, 225). Plaintiff agreed to the offer, with an allocation of $50,000 for Scott's personal injury claim and $935,000 for the wrongful-death claim. (Id. at 225, 227).

Subsequent to the successful settlement discussions, Schweizer, by his attorneys, petitioned the Surrogate's Court to approve the settlement and to grant both attorney's fees and distributions. (Def.Decl.1, Ex. O).*fn9 Before the court issued a decision on the petition, Schweizer submitted a letter to Surrogate Joseph G. Owen, challenging the amount of attorneys' fees under the settlement.*fn10 (Id., Ex. I (Aug. 15, 1991 letter from Schweizer to Judge Joseph G. Owen)). In that letter Schweizer noted that the difference between the offer that he had initially received from the insurance company and the amount of his recovery after deducting attorney's fees under the current settlement was only 7.3 percent. (Id. at first page). Schweizer further noted the disparity between his son's recovery of $191,000*fn11 for the loss of his mother and the attorney's fee of over $300,000 for the preparation of what he called "an uncomplicated and straight forward lawsuit." (Id. at second page). Schweizer also attached a comparison between the original offer and the settlement. (Id., Ex. I at third page). Schweizer further argued that if the two years of delay between the original offer and the present compromise amount were taken into account, the difference between the two figures would be only 4.5 per cent. (Id.).

At the next appearance in Surrogate's Court, Judge Owen noted that he had both a petition requesting the Court to approve the offer of compromise and the letter from Mr. Schweizer indicating reservations about the attorney-fee arrangement. (Def. Decl. 1, Ex. O (Sept. 9, 1991 Tr.) at 3). The court asked Schweizer whether he wanted to consult with counsel other than John Mulvehill, but the plaintiff declined. (Id.). The Court then adjourned the proceedings to allow Mr. Schweizer to consult with Thomas N. O'Hara, Esq., Scott's guardian ad litem., and to allow Mr. O'Hara the opportunity to prepare a report on the adequacy of the settlement and the appropriate attorney's fee for that portion of the settlement allocated to the child's wrongful-death claim. The Judge also provided John Mulvehill the opportunity to submit a memorandum of law as to the fee issue. Id.

Mr. O'Hara submitted a revised report*fn12 on September 25, 1991 in which he asserted that the settlement was "prudent" in light of the uncertainty of a trial outcome and "the unlikelihood of collecting any award in excess of the policy limits." (Id., Ex. R (September O'Hara Report) at ¶ 16). The guardian ad litem noted that the petition for approval of compromise contained language fixing the attorney's fee at $309,267.86, and that, because the petition was verified by Mr. Schweizer, he was bound by the judicial admission. (Id. at ¶¶ 27-28). Noting further that both the admission and the retainer agreement were binding only on Schweizer himself — and not on his son — the guardian ad litem recommended that the fee for Scott Schweizer's share of recovery should be fixed at only 25 per cent.*fn13 (Id. at ¶ 34).

In response to the Surrogate's invitation, John Mulvehill submitted an Attorney's Affirmation outlining the work he had performed in connection with the underlying action, including conducting interviews, taking depositions, selecting experts, and investigating defendants's insurance coverage. (Def. Decl. 1, Ex. N at 1-4). Mulvehill also outlined his "professional" opinion regarding the adequacy of the compromise value, the risks inherent in proceeding to trial and the relative prudence of the settlement. (Id. at 7-8).

Urban Mulvehill also submitted an affidavit, indicating that he had referred Schweizer to John Mulvehill (Def. Decl. 1, Ex. D (Aff. of U. Mulvehill, sworn to Sept. 16, 1991) at ¶ 2), that the plaintiff had showed an interest in interviewing John Mulvehill but that Schweizer also had had the names of "five or six other attorneys" whom he wished to interview as well (id. at ¶¶ 4-6), and that plaintiff had in fact interviewed three attorneys (id. at ¶ 7) before retaining John Mulvehill. In his affidavit, Urban Mulvehill recounted that his firm had been retained in connection with plaintiff's estate matters (id. at ¶ 8), and set forth the nature of the work that he had performed in connection with the wrongful-death action (id. at ¶ 9) and his opinion that the settlement was "the best possible result." (Id. at ¶ 18). The affidavit contains no mention, however, of the 80-20 fee-splitting arrangement between the two attorneys.

At a subsequent proceeding in Surrogate's Court, when asked if there was anything else he wished to submit, Schweizer responded in the negative. (Def. Decl. 1, Ex. S (Tr. of Sept. 30, 1991) at 2). On November 22, 1991, Surrogate Owen issued a written decision. The Surrogate adopted the guardian ad litem's recommendation regarding the one-fourth fee for the Portion of the recovery allocated to Scott and found that Richard Schweizer was bound by the one-third fee retainer agreement entered into with John Mulvehill. (Id., Ex. T at 3-4). The Surrogate subsequently issued a decree restating his ruling and noting that Schweizer had objected to the fee, that the guardian ad litem had submitted a report, and that John Mulvehill had filed two affirmations and Urban Mulvehill had filed an affidavit in the matter. (Id., Ex. O at 3).

In December 1995, Richard Schweizer commenced this action, asserting his current claims. On April 30, 1999 defendants filed a motion for summary judgment on all claims, which we here address.


I. Standard of Review on Summary Judgment

The court may enter summary judgment only if it concludes that there is no genuine dispute as to any material fact and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. See, e.g., Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998). It is axiomatic that the role of the court on such a motion "`is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.'" Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir. 1993) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991).

The movant bears the initial burden of informing the court of the basis for his motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In making this judgment, all facts must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-moving party has the burden of proof as to a particular issue, the movant may satisfy his initial burden by demonstrating the absence of evidence in support of an essential element of the non-moving party's claim. See, e.g., Ray Repp & K & R Music Inc. v. Webber, 132 F.3d 882, 890 (2d Cir. 1997), cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998); Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). If the movant fails to meet his initial burden, the motion will fail even if the opponent does not submit any evidentiary matter to establish a genuine factual issue for trial. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); BBS Norwalk One, Inc. v. Raccolto., Inc., 117 F.3d 674, 677-78 (2d Cir. 1997); Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 46 (2d Cir. 1985).

If the movant carries his initial burden, the burden shifts to the party opposing the motion to demonstrate a genuine dispute as to one or more of the material facts. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; B.F. Goodrich v. Betkoski, 99 F.3d 505, 521 (2d Cir. 1996), cert. denied sub nom. Zollo Drum Co., Inc. v. B.F. Goodrich Co., 524 U.S. 926, 118 S.Ct. 2318, 141 L.Ed.2d 694 (1998). In doing so, the opposing party cannot rest on "mere allegations or denials" of the facts asserted by the movant, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 526 (2d Cir. 1994), nor can he rely on his pleadings or on merely conclusory factual allegations. He must also "do more than simply show that there is some metaphysical doubt as to the material facts," Matsnshita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); B.F. Goodrich, 99 F.3d at 521. Rather, he must present specific evidence in support of his contention that there is ...

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