The opinion of the court was delivered by: McCURN, Senior District Judge.
MEMORANDUM-DECISION AND ORDER
In May 1999, plaintiff Michael Taylor commenced this
negligence action against defendant Consolidated Rail
Corporation, d/b/a Conrail, alleging that he sustained serious
and permanent ear damage due to defendant's train's whistle
blowing. Defendant now moves for summary judgment pursuant to
Fed.R.Civ.P. 56. The motion is unopposed. For the following
reasons, defendant's motion is granted.
In August 1996, plaintiff, apparently an employee of the State
of New York, was repairing a bridge located in Whitesboro, New
York. Defendant owns and operates the railroad the passes under
the above mentioned bridge. As alleged in the amended complaint,
defendant's train blew its whistle as it approached and then
passed under the bridge, and such whistle blowing permanently
and seriously damaged plaintiffs ear. Plaintiff alleges
defendant's negligence caused his injuries in that defendant
failed to (1) provide a safe place to work, (2) warn plaintiff
of the hazard it created by permitting a train to sound its
whistle while passing through the work site, (3) properly
supervise the work site and train its personnel in safety
precautions, (4) comply with rules governing railroad
operations, and (5) exercise due care in protecting plaintiff at
the work site, among other things.
Defendant answered the amended complaint and discovery,
although somewhat protracted, ensued. On January 24, 2001,
plaintiffs attorney moved to withdraw as counsel. Shortly
thereafter, defendant made this motion for summary judgment. On
April 20, 2001, Magistrate Judge Gary L. Sharpe granted
plaintiffs counsel's motion to withdraw and, after explaining to
plaintiff the ramifications of not timely submitting opposition
papers to defendant's pending summary judgment motion, ordered
plaintiff to inform this court of his position with respect to
the pending motion after consideration of whether to proceed
pro se or obtain substitute counsel (see Dkt. No. 29). By
letter received on May 24, 2001, plaintiff informed the court
that he is unable to proceed with the action.
Dismissal of this action may be warranted under Fed.R.Civ.P.
41(a)(2) given plaintiff's statement in his May 24, 2001 letter
that he is unwilling to continue the action.*fn1 However,
since the court has defendant's unopposed motion for summary
judgment before it, a decision on that motion is appropriate.
A grant of summary judgment is proper "`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 judgment as a matter of law.'" R.B. Ventures,
Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting
Fed.R.Civ.P. 56(c)). Rule 56 mandates the entry of summary
judgment against any 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." Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Particularly
relevant here, an unopposed summary judgment motion in a pro
se action may be granted where (1) the pro se litigant has
received adequate notice that failure to file any opposition may
result in the entry of summary judgment without trial, and (2)
the court is satisfied that "the facts as to which there is no
genuine dispute show that the moving party is entitled to
summary judgment as a matter of law." Champion v. Artuz,
76 F.3d 483, 485 (2d Cir. 1996).
Magistrate Judge Sharpe's April 20, 2001 order thoroughly
explained both the procedures plaintiff should follow if he
wished to proceed pro se and oppose the summary judgment
motion, and the consequences that would result if plaintiff
failed to timely submit opposition papers. Plaintiff thus
received adequate notice regarding what effect any failure to
oppose the summary judgment motion would have on the action.
Turning to defendant's motion, the court determines that
summary judgment must be granted as a matter of law. Defendant
has provided undisputed facts establishing that it that it had
no duty to supervise plaintiff, that it had no control of
plaintiffs work site, and that it fully complied with all the
applicable rules and regulations regarding the operation of the
train. No genuine material issue of fact thus exists as to
whether defendant owed a duty to plaintiff and, even assuming
arguendo defendant owed plaintiff a duty, that defendant
breached that duty. Accordingly, defendant's motion for summary
judgment is granted.
Defendant's motion for summary judgment is GRANTED and the
amended complaint in this action is DISMISSED, without costs.