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STERBENZ v. ATTINA

June 11, 2002

ROSEMARY STERBENZ, PLAINTIFF,
V.
JANET ATTINA AND COMMERCIAL UNION INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Mann, United States Magistrate Judge.

  MEMORANDLM AND ORDER

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.

FACTUAL BACKGROUND

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).

While both parties to this action filed Rule 56.1 statements, see [Defendants'] Rule 56.1 Statement of Material Facts ("Def. Stmt."); [Plaintiffs] Rule 56.1 Statement of Material Facts ("Pl. Stmt."), plaintiffs submission ignores a number of defendants' record-based factual assertions and contains conclusory factual allegations with no citations to the record.*fn1 Where plaintiff has not responded to defendants' factual assertions — all of which are established by documentary evidence and/or the deposition testimony of plaintiff or her counsel — this Court has deemed those facts to be uncontroverted.

The Uncontroverted Facts

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 (Def.Ex.K).

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, ...


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