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DERIENZO v. METROPOLITAN TRANSPORTATION AUTHORITY

December 12, 2005.

GEORGE DERIENZO Plaintiff,
v.
METROPOLITAN TRANSPORTATION AUTHORITY and METRO-NORTH COMMUTER RAILROAD, Defendants.



The opinion of the court was delivered by: PETER LEISURE, District Judge

OPINION AND ORDER

Plaintiff, George Derienzo, brings this action against defendants Metropolitan Transportation Authority ("MTA") and Metro-North Commuter Railroad ("Metro-North") pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (2000), alleging personal injuries sustained from slipping and falling on a hazardous condition while on defendant Metro-North's property. Plaintiff alleges specifically that while working as an MTA police officer, he slipped on debris that had collected at the top of a staircase and, as a result, fell down the flight of stairs, injuring his back. Plaintiff claims that defendants failed to exercise reasonable care in informing him about, and protecting him from, a hazardous condition of which they were aware. Defendants now move for summary judgment*fn1 on two grounds: first, that liability has not been established because the alleged accident was unforeseeable; and, second, that damages have not been established because plaintiff has failed to demonstrate that his injuries were caused by the fall. For the reasons set forth below, defendants' motion is granted and plaintiff's claims are dismissed.

  BACKGROUND

  I. Local Rule 56.1 Requirements

  A party moving for summary judgment in this district is bound by Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Rule 56.1 Statement"), which requires a party to submit along with its other motion papers a separate statement of numbered material facts "as to which the moving party contends there is no genuine issue to be tried."*fn2 S.D. & E.D.N.Y.R. 56.1(a). Correspondingly, the opposing party is required to submit a counterstatement responding to each numbered paragraph in the moving party's statement, and any additional paragraphs setting forth other material facts as to which the opposing party contends there is a genuine issue to be tried ("Counterstatement"). Id. at (b). While defendants included a Rule 56.1 Statement with their motion papers, plaintiff failed to file the required Counterstatement. Local Rule 56.1 provides that where the opposing party does not specifically controvert an asserted material fact of the moving party, such fact is deemed to be admitted for purposes of the motion. Id. at (c). The Second Circuit held in Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003), that uncontroverted assertions of fact shall be deemed to be admitted: "If the opposing party . . . fails to controvert a fact . . . set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted." See also Dervin Corp. v. Banco Bilbao Vizcaya Argentaria, S.A., No. 03 Civ. 9141, 2004 WL 1933621, at *8 (S.D.N.Y. Aug. 30, 2004) (Leisure, J.) ("[I]f . . . a counter statement is not filed, the facts in the moving parties['] Rule 56.1 statement are deemed admitted by the opposing party." (citing Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998))).*fn3

  Notwithstanding the Court's admission of defendants' uncontroverted facts, defendants' motion will not be automatically granted, because under Giannullo, "`[t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law.'" 322 F.3d at 140 (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001)). The Giannullo Court went on to state that because "`a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record,'" id. (quoting Holtz, 258 F.3d at 74), defendant remains obligated to demonstrate that no genuine issue of material fact exists to warrant a trial, id. If defendant fails to set forth adequate assertions of undisputed facts, supported by admissible evidence in the record, summary judgment must still be denied, as plaintiff "is not required to rebut an insufficient showing." Id. at 140-41; see 24/7 Records, Inc. v. Sony Music Entm't, Inc., No. 04 Civ. 5563, 2005 WL 3046249, at *6 (2d Cir. Nov. 8, 2005) (noting that where a defendant moving for summary judgment, who does not maintain the burden of proof at trial, fails to show an absence of evidence supporting plaintiff's claims, and plaintiff does not oppose the motion with any evidence, summary judgment should be denied, "`for the non-movant is not required to rebut an insufficient showing'" (quoting Giannullo, 322 F.3d at 140-41)); Vermont Teddy Bear Co. v. 1800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) ("This Court has made clear, however, that where the non-moving party `chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.'" (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001))).

  However, after holding that defendants' assertions were required to be supported by admissible evidence in the record, the Giannullo Court addressed in a footnote the dissent's argument that the majority's reading of Local Rule 56.1 was inconsistent with Rule 56 and the Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Giannullo, 322 F.3d at 141 n. 2. The Court's majority agreed with the dissent's position that under Celotex "a defendant may move for summary judgment on the ground that the plaintiff has failed to adduce any evidence of an element of plaintiff's claim, and if the plaintiff fails in response to contest this assertion or adduce such evidence, defendant, without more, will prevail." Id. However, it held that Local Rule 56.1's requirement that a movant's assertions be supported by admissible evidence in the record was "wholly distinguishable" from the case before it because defendant was making affirmative assertions in his Rule 56.1 Statement to support summary judgment in his favor.*fn4 Id. Because defendant was making affirmative assertions, rather than moving "on the ground that the plaintiff ha[d] failed to adduce any evidence of an element of plaintiff's claim," it was required to support its assertions with admissible evidence. Id.

  Some district courts in the Second Circuit have since followed the Giannullo Court's distinction between a movant that makes affirmative assertions, such as the Giannullo defendants' assertions that would justify a facially defective arrest, and a movant that seeks summary judgment on the ground that the non-movant failed to produce any evidence supporting an element of its claim. See, e.g., Feurtado v. City of New York et al., 337 F. Supp. 2d 593, 599 (S.D.N.Y. 2004) (holding that while Giannullo stated that a summary judgment motion should be denied where the movant does not meet its burden by producing admissible evidence, the decision "did not purport to contradict Celotex's holding that in fact a movant is not required to provide admissible evidence in cases where the movant does not bear the burden of proof on the issue that is the subject of its motion"); Webster v. The City of New York et al., 333 F. Supp. 2d 184, 207 (S.D.N.Y. 2004) (citing Giannullo in support of the proposition that where "[d]efendants . . . have not affirmatively asserted the existence of a particular factual scenario in support of their motion for summary judgment . . . but have, instead, sought to demonstrate that there is an absence of evidence to support Plaintiffs' claim by outlining the purported flaws" in plaintiffs' claim, defendants were not required to adduce admissible evidence). Other district courts have not addressed the Giannullo Court's distinction and instead cite Giannullo for the proposition that a summary judgment motion must be denied if the movant fails to meet is burden of producing admissible evidence in support of its assertions under Local Rule 56.1 See, e.g., Wilson v. New York City Dep't of Transp., No. 01 Civ. 7398, 2005 U.S. Dist. LEXIS 21620, at *10 (S.D.N.Y. Sept. 28, 2005) ("Although Local Rule 56.1 (c) provides that non-controverted material facts are to be deemed admitted, when considering an unopposed motion the Second Circuit requires district courts to confirm that factual statements are adequately supported by evidence in the record."); Rikhy v. AMC Computer Corp., No. 01 Civ. 7007, 2003 WL 1618529, at *3 (S.D.N.Y. Mar. 28, 2003) ("In light of the Second Circuit's recent opinion in [Giannullo,] this Court notes that each paragraph in defendants' Rule 56.1 Statement relied on by this Court contains `citation[s] to the admissible evidence of record supporting each [allegedly undisputed] fact.'" (citing Giannullo v. City of New York, 322 F.3d 139, 140 n. 2 (2d Cir. 2003) (brackets in original))).

  In this case, defendant is moving for summary judgment on the ground that, inter alia, plaintiff has failed to establish a genuine issue of material fact as to foreseeability, an element of a FELA claim. See Sinclair v. Long Island R.R., 985 F.2d 74, 77 (2d Cir. 1993) (stating that in FELA actions, "`[p]laintiffs are . . . required to prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation'" (citing Robert v. Consol. Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987))). Consequently, under Giannullo, this Court need only require defendant to point out that plaintiff has failed to proffer any evidence of an element of his claim. See, e.g., Webster v. The City of New York et al., 333 F. Supp. 2d 184, 207 (S.D.N.Y. 2004) (holding that defendants satisfied their burden in moving for summary judgment "`by showing — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case" (citing Pepsi Co., Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002))). Indeed, defendants have done just that: "Summary judgment is warranted as to liability because plaintiff has not raised a triable issue that defendants could have foreseen his alleged fall, and foreseeability is a necessary element of employer liability under FELA." (Def.'s Mem. Law Supp. Summ. J. 1.) However, as stated above, because some district courts have required movants to cite to admissible evidence in support of their Rule 56.1 Statements without, per Giannullo's footnote two, first determining whether it is necessary, the Court will, in an abundance of caution, determine whether the relevant assertions in defendants' Rule 56.1 Statement cite adequately to admissible evidence. The plain language of Local Rule 56.1(d)*fn5 and a lack of appellate authority addressing the issue post-Giannullo further warrants this decision. The Court's analysis follows below.

  II. Material Facts Asserted to Be Without Dispute

  Plaintiff began working as a Metro-North police officer in 1991 and retired with a disability pension as an MTA police officer on October 9, 2002.*fn6 (Def.'s Local R. 56.1 Statement of the United States District Cts. for the Southern and Eastern Districts of New York ("Def.'s 56.1") ¶ 1.) He alleges that, while on duty on September 8, 1998, he slipped and tumbled down a flight of steps located at Oak Street on Metro-North property in Mount Vernon, New York (the "Steps"). (Def.'s 56.1 ¶ 3.) Plaintiff further alleges that because of defendants' negligent maintenance or design (Def.'s 56.1 ¶ 3), cans, litter, and tree branches had collected on the Steps (Def.'s 56.1 ¶ 4), causing him to fall (Def.'s 56.1 ¶ 3). As a result of the fall, plaintiff developed a back condition that required him to undergo lumbar fusion surgery on May 4, 1999, which surgery in turn caused a preexisting pituitary tumor to hemorrhage. (Def.'s 56.1 ¶ 3.)

  The Steps are located north of the Mount Vernon West train station; they lead from street level up to the railroad's right of way, which sits on top of an embankment. (Def.'s 56.1 ¶ 9.) They do not lead to or come from a building or other structure, and they consist of railroad ties dug into the earth. (Def.'s 56.1 ¶ 10.) The Steps were installed decades ago by one of Metro-North's predecessors in order to allow access to a switching tower that was decommissioned and dismantled by the 1990s. (Def.'s 56.1 ¶ 11.) The section of track to which the Steps lead is easily accessed via the nearby Mount Vernon Yard or the Mount Vernon West train station. (Def.'s 56.1 ¶ 12.)

  Plaintiff had used the Steps prior to his fall, but had never complained to anyone or any of defendants' departments about the condition of the Steps. (Def.'s 56.1 ¶ 4.) Metro-North's Department of Tracks and Structures ("Structures") oversees, maintains, and repairs bridges, viaducts, and the buildings located on defendants' property. (Def.'s 56.1 ¶ 6.) The buildings include structures at train stations and railyards, such as stairs. (Def.'s 56.1 ¶ 6.) Structures' regular maintenance and repair program includes only those areas that are known to be used, where an employee complains of a hazardous or dangerous condition involving a structure or the absence of a formal structure, or if a worker or operating department reports the need to install a new structure. (Def.'s 56.1 ¶ 14.) If any such complaint or report is made, Structures investigates the complaint, remedies any hazardous condition, and performs any necessary remediation or installation. (Def.'s 56.1 ¶ 14.)

  Metro-North's non-Structures employees have not used the Steps since prior to 1998, while Structures employees have not used the Steps since "well prior to 1998."*fn7 (Weaver Aff. ¶ 13, Sept. 9, 2004.) Structures has neither received any complaint about the Steps' condition, nor any request that the Steps be replaced with new stairs. (Def.'s 56.1 ¶ 15.) Defendant Metro-North maintains electronic and paper records of every reported accident or injury on defendants' property (Def.'s 56.1 ¶ 16) and, except for plaintiff's alleged accident, there is no record of any accident ever occurring on the Steps (Def.'s 56.1 ¶ 17). Defendant Metro-North maintains "Local Safety Committees" and "District Committees" that meet monthly to hear and discuss safety issues within their respective geographical regions. (Def.'s 56.1 ¶ 18.) Since 1997, the MTA has taken and maintained notes of some of the meetings. (Streaney Aff. ¶ 7, Sept. 5, 2004.) The Steps are located within the region covered by the Mott ...


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