The opinion of the court was delivered by: Mann, United States Magistrate Judge.
Plaintiff Rosemary Sterbenz ("plaintiff" or "Sterbenz"), individually
and as administratrix of the estate of her late husband, Robert Sterbenz
("the decedent"), seeks compensation for damages suffered as a result of
the sale by defendant Commercial Union Insurance Company ("Commercial
Union" or "defendant"), of the automobile that had been involved in the
accident that caused the decedent's death. Plaintiff complains that
defendant's disposition of the vehicle prevented her from bringing a
products liability action against the manufacturer of the vehicle.
After the instant action was removed from state court on diversity
grounds, the parties consented to have a magistrate judge handle the case
for all purposes, pursuant to 28 U.S.C. § 636 (c). Currently pending
before this Court is a motion by defendants Commercial Union and Janet
Attina ("Attina") for summary judgment, pursuant to Fed.R.Civ.P. 56.
Plaintiff has opposed the motion, and has submitted what purports to be a
cross-motion for sanctions based on spoliation of evidence. For the
reasons that follow, the defense motion for summary judgment is granted
in its entirety, and plaintiffs cross-motion for sanctions is denied.
The Parties' Factual Submissions
As a preliminary matter, plaintiffs submissions are patently
deficient. Local Civil Rule 56.1 of the United States District Courts for
the Southern and Eastern Districts of New York requires a party moving
for summary judgment to submit "a separate, short and concise statement"
setting forth material facts as to which there is no genuine issue to be
tried. Local Civ. R. 56.1(a). The party opposing the motion must respond
with a statement of facts as to which a triable issue remains and "may
not rest upon the mere allegations or denials of [his] pleading, but . . .
must set forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e) (2002); see Local Civ. R. 56.1(b).
Furthermore, "[e]ach statement of material fact by a movant or opponent
must be followed by citation to [admissible] evidence. . . ." Local Civ.
R. 56.1(d) (citing Fed.R.Civ.P. 56(e)). The facts presented in the
movant's statement "will be deemed to be admitted unless controverted" by
the opposing party's statement. Local Civ. R. 56.1(c); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); Millus v. D'Argelo, 224 F.3d 137, 138 (2d Cir. 2000); Dittmer v.
County of Suffolk, 188 F. Supp.2d 286, 292 (E.D.N.Y. 2002).
This action arose out of a single-vehicle accident, which occurred on
February 12, 1999. See Def. Stmt. ¶ 1; Pl. Stmt. ¶ 3. Plaintiff
was driving the family's 1998 Plymouth Voyager, which was insured by
Commercial Union pursuant to a "Custom-Pac" policy ("the Policy") that
was issued in New York and was in effect on the date of the accident.
See Amended Complaint ("Am. Compl.") ¶¶ 4, 6; see also Custom-Pac
Policy, attached as Exhibit N to defendants' "Notice of Motion."*fn2
While traveling on Route 402 in Pennsylvania with the decedent in the
front passenger's seat, the car veered off the road and into a series of
trees, causing the death of the decedent. See Affirmation of Patrick
Aurilia, Esq. ("Def. Affm.") ¶ 5; Affidavit of Solomon Abrahams,
Esq. ("Pl. Aff.") ¶ 4.
Officers with the Blooming Grove Police Department responded to the
scene and advised plaintiff that they would secure the vehicle. See Def.
Stmt. ¶ 2. The following day, after plaintiff and her father were
informed of the vehicle's location by the police, they went to remove
personal items from the vehicle, at which time they were given a business
card for Art's Auto Body, the entity holding the vehicle. See Def. Affm.
¶¶ 8, 15; see also Def. Stmt. ¶ 3. Two to three weeks later,
plaintiffs father again contacted Art's Auto Body and was told that the
vehicle remained at the same location. See Def. Affm. ¶ 9.
Meanwhile, on February 26, 1999, within two weeks of the accident,
plaintiff retained the services of Solomon Abrahams, Esq., to represent
her in connection with the accident. See Def. Stmt. ¶ 4; see also
Retainer Agreement (Def.Ex.G).*fn3 That day, Mr. Abrahams received from
defendant a six-page fax confirming, inter alia, that the vehicle was
still being held at Art's Auto Body. See Def. Stmt. ¶¶ 5-6; see also
[Defendants'] First Notice to Admit (Def.Ex.I); [Plaintiffs] Response to
First Notice to Admit (Def.Ex.J). This fax cautioned that the vehicle was
"collecting storage [and] should be moved ASAP," and further disclosed
that on February 24, 1999, the vehicle had been inspected and declared a
total loss by Michael Lukasavage of Property Damage Appraisers. See
[Plaintiffs] Response to Notice for Discovery & Inspection
Neither Mr. Abrahams nor anyone acting on plaintiffs behalf contacted
Art's Auto Body to arrange an inspection of the vehicle. See Def. Stmt.
¶¶ 7-8. Eventually, pursuant to the terms of the Policy, Commercial
Union purchased the vehicle from plaintiff for its full value, less the
deductible. See Am. Compl. ¶ 11; Pl. Stmt. ¶ 4; Plaintiffs
Responses to First Set of Interrogatories (Def.Ex.P) at ¶ 10. Neither
Mr. Abrahams nor any other representative of plaintiff sought to
repurchase the vehicle to use in litigation. See Abrahams Dep. (Def.Ex.H)
at 32-33; Def. Ex. P at ¶ 10.
Although Mr. Abrahams had been apprised by defendant and possibly his
client that the vehicle was being held at Art's Auto Body Shop (see Def.
Stmt. ¶¶ 6-7), he did not communicate with an expert about inspecting
the vehicle until June 15, 1999, four months following the accident, when
he wrote to one Erik Carlson. See Def. Stmt. ¶ 8; Def. Affm. ¶
14; see also Abrahams Dep. (Def.Ex.H) at 33-35; Attorney Notes
(Def.Ex.L). Mr. Carlson went to inspect the vehicle on July 23, ...