NY, and later
transferred to Tri-State Auto Auction in Cicero, NY, where it remained
for a very long time and was clearly marked as property of the defendant
and remained undisturbed for a long period of time. In paragraph 17 of
his affidavit plaintiff asserts that "[p]rior to the vehicle being moved
to Buffalo, I have personal knowledge that it was not stripped of parts."
When defendant was notified on plaintiff's claim, the vehicle was sold to
a salvage company and moved to Buffalo, NY. When plaintiff saw the
vehicle in Buffalo, it had been cannibalized and the ABS switch stripped
from the vehicle.
The documental proof submitted by defendant shows that plaintiff's
automobile insurer, Motors Insurance Company of Dallas, Texas, acquired
the wrecked vehicle on April 17, 1996, from Bombard Car Co, Inc., and no
major parts were missing from the wreck. Motors Insurance Company is a
subsidiary of General Motors Acceptance Company which is a subsidiary of
General Motors Corporation. Motorsworks independently and does not
investigate claims for General Motors Eight days later, on April 25,
1996, Motors transferred the wrecked vehicle to Central Auto Recycling,
Inc., 1807 Erie Blvd. West, Syracuse, NY. During the time Motors was in
possession of the wrecked vehicle, defendant had not been notified by
plaintiff or anyone else of a potential claim relating to the vehicle. On
June 7, 1999, Central Auto transferred the wrecked vehicle to Blakeley's
Collision Service in Lancaster, NY, (Buffalo). The transfer papers
clearly show that Central Auto had been in possession of the vehicle
since April 25, 1996, and, on the date of transfer to Blakeley's, major
component parts of the wreck were either missing or damaged. On the same
date it acquired the wreck, Blakeley's transferred it to ESIS on behalf
of defendant so it could be investigated and evaluated with regard to
plaintiff's claim. Blakeley's transfer papers reflected that major
component parts were missing or damaged at the time of transfer.
The evidence submitted demonstrates that the insurer disposed of the
wrecked vehicle, and defendant never had possession or control over it
after the accident until it was acquired by ESIS on its behalf, at which
time, major component parts were missing or damaged. It has not been
shown that defendant was responsible for the removal, loss or destruction
of the ABS switch.
Plaintiff seems to indicate that the fact the ABS switch was subject to
factory recall by the defendant is significant. It is not. Recall notices
can be relevant evidence in product liability case, Longenecker v.
General Motors Corporation, 594 F.2d 1283, 1286 (9th Cir. 1978), but the
recall notice in Longenecker directly advised the car's owner of a need
for repair to that particular car. Here, in contrast, it states only that
some 1991-1996 4-wheel drive(4WD) Blazers may have a ABS switch
malfunction. Thus, the notice creates no material issues of fact as to
whether a defect, if there was one, proximately caused plaintiff's
accident. Pesce v General Motors Corporation, 939 F. Supp. 160, 165
(N.D.N.Y. 1996). Merely establishing a defect as a possible cause of an
accident is not adequate to prove liability. The plaintiff must produce
evidence that will support a reasonable inference that the defect was the
probable cause of the accident as differentiated from a possible cause,
else, a jury verdict based upon speculation and surmise could occur,
Calhoun v. Honda Motor Company, Ltd,. 738 F.2d 126, 132 (6th Cir. 1984).
Rule 56 of the Federal Rules of Civil Procedure permits summary
judgment where the evidence demonstrates that "there is no genuine issue
of any material
fact and the moving party is entitled to judgment as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106
S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). More than a "disfavored
shortcut," summary judgment is an important procedure regarded as an
integral part of the Federal Rules as a whole, which are designed to
"secure the just, speedy and inexpensive determination of every action."
Celotex Corp v. Catreet, 477 U.S. 317, 327 106 S.Ct. 2548, 91 L.Ed.2d 265
(1991) (quoting Federal Rule of Civil Procedure 1). In determining
whether there is a genuine issue of material fact a court must resolve
all ambiguities and draw inferences against the moving party. United
States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176
(1962) (per curiam). But, "[t]he non-movant cannot escape summary
judgment merely by vaguely asserting the existence of some unspecified
disputed material facts, or defeat the motion through mere speculation or
conjecture." Western World Insurance Company v. Stack Oil, Inc.,
922 F.2d 118, 121 (2d Cir. 1990) An issue of credibility is insufficient
to preclude the granting of summary judgment. Neither side can rely on
conclusory allegations or statements in affidavits. The disputed issue of
fact must be supported by evidence that would allow a "rational trier of
fact to find for the non-moving party." Mashusita Electric Industries
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986). Unsupported allegations will not suffice to create a
triable issue of fact. Goenga v. March of Dimes Birth Defects
Foundation, 51 F.3d 14, 18 (2d Cir. 1995). "Supposition does not create a
genuine issue of fact, instead it creates a false issue, the demolition
of which is a primary goal of summary judgment. Hedberg v. Indiana Bell
Telephone Company, Inc., 47 F.3d 928, 929 (7th Cir. 1995). Nor will
factual disputes that are irrelevant to the disposition of the suit under
governing law preclude any entry of summary judgment. Anderson, 477 U.S.
at 247, 106 S.Ct. at 2509.
Defendant has met its obligation of establishing the absence of a
genuine issue of material fact. Plaintiff, conversely, has advanced no
evidence upon which a reasonable jury could return a verdict in his
favor. Furthermore, defendant has submitted competent proof that the
Blazer allegedly containing the ABS switch evidence was not in the
possession of the defendant or any of its affiliates on the date plaintiff
filed his initial claim against defendant, or anytime thereafter.
Plaintiff has also failed to disclose an expert concerning injury
causation or injury enhancement. Based upon the established facts,
defendant is entitled to judgment as a matter of law.
Accordingly, defendant's motion for summary judgment is GRANTED and the
complaint is DISMISSED, in its entirety. Defendant's motion to exclude
the testimony of
Plaintiff's expert witness is DENIED as MOOT.
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