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October 13, 2005.


The opinion of the court was delivered by: COLLEEN McMAHON, District Judge

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.


  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 ...

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