The opinion of the court was delivered by: COLLEEN McMAHON, District Judge
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR
Plaintiffs bring this action against Consolidated Rail
Corporation ("Conrail") alleging that Defendant negligently
failed to maintain the property under its control, leading to
Plaintiffs' injuries. Defendant moves for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure on
the ground that, on the date of Marion Beck's accident, Conrail
did not own, manage and/or control the premises, and thus owned
no duty to Plaintiffs. Plaintiffs request a denial of the
Defendant's motion and, in the alternate, request leave to add
two new Defendants as parties to this action.
For the reasons stated below, Defendant's motion for summary
judgment is granted, and, accordingly, the Plaintiffs' claim
against Conrail for negligence is dismissed. Plaintiffs' request
for leave to add new Defendants is denied. I. BACKGROUND
The following material facts are undisputed by the parties. On
September 8, 2001, Plaintiff Marion Beck ("Beck") drove with her
daughter to Callicoon, New York, located in the town of Delaware.
Def. Stmnt. at ¶ 4 . After parking her car in a lot at
approximately 2:30 in the afternoon, Beck walked across a
sidewalk intending to cross the street. Complaint ("Cplt.") at ¶
12. As Beck stepped on the edge of the sidewalk, the concrete
curb broke under her foot, causing her to fall forward into the
street. Id.; Def. Stmnt. at ¶ 11-12. Beck commenced this action
on October 15, 2003, alleging negligence and seeking damages for
her injuries. Simon Beck, Marion Beck's husband, also brings a
claim for loss of services and consortium. Cplt. at ¶ 18-20.
The property in question was the subject of a lease agreement,
dated December 6, 1985, between Conrail, as lessor, and the Town
of Delaware, as lessee. See Defendant's Rule 56.1 Statement of
Undisputed Facts ("Def. Stmnt.") at ¶ 23. Section 10 of the lease
agreement provides, inter alia, that the "[l]essee shall
perform all maintenance and repair of any nature, interior and
exterior, ordinary and extraordinary, to the Premises . . .
necessary to keep the Premises . . . in good order and in safe
condition. . . ." Id. at ¶ 24.
In a deed dated June 1, 1999, Conrail transferred all its
right, title, and interest in the property in question to its
wholly-owned subsidiary Pennsylvania Lines LLC ("Penn Lines").
Def. Stmnt. at ¶ 21. The deed was validly recorded in the
Sullivan County Clerk's Office on August 20, 1999. Id. On the
same date, Penn Lines entered into an agreement with Norfolk
Southern Corporation ("Norfolk"), granting Norfolk the right to
operate and use Penn Lines' assets. Id. at ¶¶ 20, 25; Plaintiffs'
Rule 56.1 Statement of Undisputed Facts ("Pl. Stmnt.") at ¶ 3. Norfolk was receiving rents on the property, pursuant to the 1985
lease agreement with the Town of Delaware, on the date of the
accident. Def. Stmnt. at ¶ 25. There is no new or separate lease
between the Town of Delaware and Norfolk. Id. at ¶ 31.
Defendant now moves for summary judgment on the ground that
Conrail did not own, operate, manage, maintain, repair and/or
control the premises in question, and thus owed no duty to the
Plaintiff Marion Beck on September 8, 2001, the date of her
accident. See Def. Mem. at 1.
II. STANDARD FOR SUMMARY JUDGMENT
A party is entitled to summary judgment when there is no
"genuine issue of material fact" and the undisputed facts warrant
judgment for the moving party as a matter of law. Fed.R.Civ.P.
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In addressing a motion for
summary judgment, "the court must view the evidence in the light
most favorable to the party against whom summary judgment is
sought and must draw all reasonable inferences in [its] favor."
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553
(1986). Whether any disputed issue of fact exists is for the
Court to determine. Balderman v. United States Veterans Admin.,
870 F.2d 57, 60 (2d Cir. 1989). The moving party has the initial
burden of demonstrating the absence of a disputed issue of
material fact. Celotex v. Catrett, 477 U.S. 317, 323,
106 S. Ct. 254, 2552, 91 L. Ed. 2d 265, 273 (1986). Once such a showing
has been made, the non-moving party must present "specific facts
showing that there is a genuine issue for trial." Fed.R.Civ.P.
56(e). The party opposing summary judgment "may not rely on
conclusory allegations or unsubstantiated speculation." Scotto
v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Moreover, not
every disputed factual issue is material in light of the
substantive law that governs the case. "Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude summary
judgment." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
Because the district court must determine "whether there is a
need for trial whether, in other words, there are any genuine
factual issues that properly can be resolved . . . in favor of
either party," the non-moving party, in order to defeat the
motion, must produce "sufficient evidence favoring the non-moving
party for a jury to return a verdict for that party. . . . If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Id. at 249-50,
106 S. Ct. at 2510-11 (citations omitted). While the Court must view the record
"in the light most favorable to the non-moving party," Leberman
v. John Blair & Co., 880 F.2d 1555, 1559 (2d Cir. 1989)
(citations omitted), and "resolve all ambiguities and draw all
reasonable inferences in favor of the party against whom summary
judgment is sought," Heyman v. Commerce and Indus. Ins. Co.,
524 F.2d 1317, 1320 (2d Cir. 1975) (citations omitted), the
non-moving party nevertheless "must do more than simply show that
there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)
(citations omitted) (emphasis added).
Plaintiffs assert two bases for denial of Defendant's motion
for summary judgment. Neither is sufficient to withstand summary
judgment. III. DISCUSSION
A. Defendant's Duty of Care
1. Direct Duty to Plaintiffs
Plaintiffs contend that Conrail was negligent in failing to
maintain and repair the sidewalk/curb area they allegedly owned,
on which the Plaintiff had her accident. Cplt. at ¶ 13. In order
to maintain an action for negligence, the Plaintiffs must
establish that Defendant owed a duty to Plaintiff as, "[i]n the
absence of duty, there is no breach and without a breach there is
no liability." Dugue v. 1818 Newkirk Mgmt. Corp.,
301 A.D.2d 561, 562, 756 N.Y.S.2d 51, 52 (2d. Dept. 2003) (quoting Pulka v.
Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 395,
358 N.E.2d 1019, 1020 (1976)).
It is well established under New York law that "liability for a
dangerous condition on property is predicated upon ownership,
occupancy, control or a special use of the property;" the
determinative issue being one of possession and control.
Rodriguez v. Am. Rest. Ventures, Inc., 923 F. Supp. 598, 601
(S.D.N.Y. 1996) (emphasis added) (quoting Millman v. Citibank,
N.A., 216 A.D.2d 278, 627 N.Y.S.2d 451, 452 (2d. Dept. 1995));
Abdul-Azim v. RDC Commercial Ctr., Inc., 210 A.D.2d 191,
620 N.Y.S.2d 70, 71 (2d. Dept. 1994). Where none of these factors are
present, "a party cannot be held liable for injuries caused by a
dangerous or defective condition of the property." Minott ...