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O'KEEFE v. ARBON EQUIPMENT CORPORATION

November 2, 2005.

KIMBERLY O'KEEFE and DENNIS O'KEEFE, Plaintiffs,
v.
ARBON EQUIPMENT CORPORATION, Defendant.



The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge

OPINION AND ORDER

This is a diversity action brought by plaintiffs, Kimberly O'Keefe ("O'Keefe") and her husband, Dennis O'Keefe, stemming from a work-related accident in which O'Keefe was allegedly struck by an automatic overhead door in a Stew Leonard's grocery store. Plaintiffs bring suit against defendant Arbon Equipment Corp. ("Arbon"), which installed and serviced a number of automatic doors at the store, including the door that allegedly struck O'Keefe. Plaintiffs allege Arbon negligently inspected and serviced the door, and that O'Keefe's injuries resulted from Arbon's negligence. O'Keefe seeks "physical and mental" damages, and her husband seeks damages for loss of "services, comfort and society of his wife."

Presently before the Court is defendant's motion for summary judgment, which, for the reasons stated below, is granted.

  BACKGROUND

  On June 6, 2002, O'Keefe was injured during the course of her employment when she allegedly was hit by a high-speed, automatic overhead door. (Am. V. Complt. ¶ 5.) At the time, O'Keefe was a full-time employee of the Stew Leonard's grocery store in Yonkers, New York, tasked with handing out free samples. (O'Keefe Dep. at 9, 13.) In describing the accident, O'Keefe testified: "I went to the door, I pulled the string, and then I woke up on the floor."*fn1 (Id. at 22.) After an unknown period of time, O'Keefe got up, reported the incident to Stew Leonard's security and informed her supervisor. (Id. at 38.) Security personnel then transported O'Keefe to Lawrence Hospital, where she complained of head, neck and back pain; was examined by an emergency room doctor; given an ice pack; and told to return if she felt worse. (Id.) O'Keefe went to St. John's Hospital later that evening complaining of increased head and neck pain, as well as nausea and shoulder pain. (Id. at 40-41.) The emergency room doctor referred plaintiff to her primary care physician, who ordered a CAT scan and MRI and prescribed physical therapy. (Id. at 46, 51.)

  Arbon, which sells and services loading dock equipment and high-speed power doors, installed the door — a Protecdor 8000 model — that allegedly struck plaintiff. (Def. Rule 56.1 Stmt. ¶ 2; Bellows Dep. at 5.) In addition, Stew Leonard's had a preventative maintenance contract, known as the "Planned Maintenance Program," with Arbon. The Planned Maintenance Program required Arbon to conduct a single, annual "inspection, lubrication, adjustment and cleaning" of seven automatic doors and eight hydraulic levelers at Stew Leonard's.*fn2 (Pirog Aff., Ex. I; Bellows Dep. at 11, 12.) In addition, although not part of the contract, Arbon would service the doors if so requested by Stew Leonard's, but at additional expense to the store. (Pirog Aff., Ex. I; Bellows Dep. at 18-20; Botehlo Dep. at 5-6.)

  James Botehlo, Stew Leonard's facilities manager, is responsible for the day-to-day maintenance of the store. Botehlo manages a maintenance team of eight people, including several electricians, several carpenters and a machine repairman, among others. (Botehlo Dep. at 5-6.) These in-house repairmen inspected each automatic door on a daily basis. (Id. at 18.) These employees would attempt minor repairs of the doors, but Arbon would be called if the in-house repairmen could not fix the doors or the doors required major repairs. (Id. at 16, 17.) The Protecdor 8000 is a track-guided, steel-framed, vinyl door used to control environmental conditions between rooms. (Pirog Aff., Ex. G; Bellows Dep. at 13.) It has several safety features, including a soft, bean-bag-like bottom edge; internally and externally-mounted photoeyes that automatically stop and raise the door if an object is in the door's path; and magnetic tracks that allow the door to "break away" if impacted, so as to minimize structural damage to the door. (Pirog Aff., Ex. G; Bellows Dep. at 13, 27-28; Botehlo Dep. at 21.) According to Botehlo, only impact from equipment (such as forklifts), and not human bodily contact, has ever knocked these types of doors out of their tracks. (Botehlo Dep. at 26.) An accident report filled out by Stew Leonard's security personnel indicated that they found the door halfway down and in the off position after the accident. (Id. at 32.) Inspection by Stew Leonard's maintenance personnel revealed the door was jamming halfway down. (Id.) Botehlo testified that he was unaware of any complaints having been made in May or June 2002 regarding the door; he does not keep records on repair requests or repairs performed. (Id. at 18, 25.) However, an Arbon service record establishes that Arbon received a service request on May 31, 2002, and serviced the door on June 3, 2002 — three days before the accident and roughly one month after it performed scheduled preventative maintenance. (Pirog Aff., Ex. K ¶ 5 & Ex. L; Am. V. Complt. ¶ 4.) There is no evidence that Arbon was called to repair the door or its safety mechanisms after this accident.

  Plaintiffs, residents of New York, initiated suit against Arbon in New York Supreme Court by serving Arbon with a summons and verified complaint. (Pirog Aff. ¶ 5 & Ex. A.) Arbon, a Wisconsin corporation with its principal place of business in Milwaukee, Wisconsin, removed the action to this Court pursuant to 28 U.S.C. §§ 1332 and 1441.*fn3 (Def. Rule 56.1 Stmt. ¶ 1; Pirog Aff. ¶ 7.) Defendant then filed an answer in which it denied having manufactured the door. (Pirog Aff. ¶ 8 & Ex. C ¶ 3.) In response, plaintiffs filed an amended verified complaint eliminating their claim for strict products liability; plaintiffs' sole remaining claim is for negligent inspection, maintenance, service and repair of the door. (Pirog Aff. ¶ 9; Am. V. Complt. ¶ 6.) Defendant moves for summary judgment pursuant to FED. R. CIV. P. 56 on the ground that it owes no legal duty of care to O'Keefe, thus defeating O'Keefe's prima facie case as a matter of law.

  DISCUSSION

  I. Summary Judgment Standard

  Under FED. R. CIV. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 247-50 (1986). A fact is material only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson, 477 U.S. at 248. The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See Anderson, 477 U.S. at 255. The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). To defeat summary judgment, the nonmovant must go beyond the pleadings and "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 (1986). Bald assertions or conjecture unsupported by evidence are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

  II. Plaintiffs' Failure to Comply With Local Rule 56.1

  Pursuant to Local Civil Rule 56.1(a) adopted by the Southern District of New York, a motion for summary judgment requires that the moving party submit a "separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Rule 56.1 also requires the nonmoving party to respond to the movant's submission by contesting any or all of the movant's assertions of material fact and adding any additional material facts that the nonmovant believes justify trial. See Local Rule 56.1(b). Failure of the nonmoving party to fulfill this requirement permits the court to deem admitted any material fact listed in the movant's Rule 56.1 statement "unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Local Rule 56.1(c).

  "Courts in this Circuit have not hesitated to deem admitted the facts in a movant's Local Civil Rule 56.1 statement that have not been controverted by a Local Civil Rule 56.1 statement from the nonmoving party." Gadsden v. Jones Lang Lasalle Am. Inc., 210 F.Supp. 2d 430, 438 (S.D.N.Y. 2002); see also Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) ("We have affirmed the grant of summary judgment on the basis of uncontested assertions in the moving party's Local Rule 56.1 statement."). The five-page "Affirmation in Opposition" of plaintiff's attorney fails to satisfy the requirements of Local Rule[] 56.1(b). See AFL-CIO Hosp. & Nursing Home Council Pension Fund ex rel. Boyens v. Manor Oaks Skilled Nursing Facilities, Inc., No. 01-CV-99S, 2004 WL 1737189, at *2 (W.D.N.Y. July 29, 2004). "Moreover, an attorney affidavit not made on personal knowledge, as this one is not, is insufficient to defeat a summary judgment motion." Id. (collecting cases). "However, `[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to ...


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