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Coyle v. GLS Leasco

March 19, 2009

THOMAS H. COYLE, AND LINDA SUE COYLE, PLAINTIFFS,
v.
GLS LEASCO, INC., DECISION C.C. EASTERN, INC., CENTRAL TRANSPORT INTERNATIONAL, INC., HOLDING COMPANY OF GLS LEASCO, INC., AND C.C. EASTERN, INC., AND CENTRA, INC., AS HOLDING COMPANY OF CENTRAL TRANSPORT INTERNATIONAL, INC., DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

REPORT and RECOMMENDATION and ORDER

JURISDICTION

This action was referred to the undersigned by Honorable Richard J. Arcara on October 27, 2005, for pretrial matters including report and recommendation on dispositive motions. The matter is presently before the court on Plaintiffs' motions for summary judgment (Doc. No. 31), filed February 14, 2008, and to preclude expert witness evidence (Doc. No. 44), filed April 28, 2008, and on Defendants' motions for summary judgment (Doc. No. 38), filed April 4, 2008, for sanctions (Doc. No. 43), filed April 22, 2008, and to strike Plaintiffs' affidavit (Doc. No. 53), filed June 6, 2008.*fn1

BACKGROUND and FACTS*fn2

On November 4, 1986, GLS Leasco, Inc. ("Leasco") purchased real property located at 850 Aero Drive, in Cheektowaga, New York ("the Premises"), from Terminal Rentals, Inc. (Halls Motor Freight) ("Terminal Rentals"). On December 30, 1986, Leasco was merged into Centra, Inc. ("Centra"), and Centra made a capital contribution of all of Leasco's real estate assets, including the Premises, to Central Transport International, Inc. ("Central Transport"). On January 1, 1990, Central Transport made a capital contribution of all its real estate assets, including the Premises, to Crown Enterprises, Inc., a Tennessee corporation. On August 31, 1990, Crown Enterprises, Inc., a Tennessee corporation, merged into Crown Enterprises, Inc., a Michigan corporation ("Crown").

On September 25, 1992, Crown and Con-Way Central Express, a part of ConWay Transportation Services, Inc. ("Con-Way"), a foreign corporation,*fn3 entered into a lease agreement ("the Lease")*fn4 whereby Crown, as the landlord of the Premises, agreed to lease the Premises to Con-Way for Con-Way's use in operating a commercial trucking business. Pursuant to the Lease, Con-Way, as tenant, agreed to "indemnify Landlord [Crown] and save it harmless from and against any and all claims, actions, suits, damages, liabilities, loss, orders, decrees, or judgments and expenses of any kind or nature whatsoever, including without limitation, attorneys' fees, costs and expenses . . . ." Lease § 9.

The Lease, which was amended on May 1, 1994, March 18, 1996, September 15, 1997, and August 30, 1999, remained in effect on February 7, 2003, when, Coyle, in connection with his employment by Con-Way, drove a tow-motor used to unload freight from trucks across a cracking and sinking portion of a concrete slab floor of a truck terminal located at the Premises. The poor condition of the concrete slab floor allegedly jostled the moving tow motor, causing Plaintiff to fall from the tow motor and sustain injuries.

On September 9, 2005, Plaintiffs Thomas H. Coyle ("Coyle"), and his wife, Linda Sue Coyle ("Mrs. Coyle") (together, "Plaintiffs"), commenced a personal injury action in New York Supreme Court, Erie County ("Coyle I"), seeking monetary damages for injuries sustained as a result of a February 7, 2003 incident ("the incident"), occurring at 850 Aero Drive, Cheektowaga, New York ("the Premises"). Named as Defendants in Coyle I are Leasco as the alleged owner of the Premises, C.C. Eastern, Inc. ("C.C. Eastern"), the alleged operator of a trucking terminal at the Premises, Central Transport, the holding company of Leasco and C.C. Eastern, and Centra, the holding company of Central Transport (together, the "Coyle I Defendants"). According to Plaintiffs, the Coyle I Defendants are all Michigan corporations. Coyle I Complaint ¶ 3.

On October 20, 2005, the Coyle I Defendants removed the action to this court (Coyle I, Doc. No. 1) ("Removal Notice"), asserting diversity of citizenship under 28 U.S.C. § 1332 as the basis for subject matter jurisdiction,*fn5 and filed an answer to the Complaint.

On December 8, 2005, Plaintiffs commenced in New York Supreme Court, Erie County a second personal injury action ("Coyle II") seeking monetary damages for injuries sustained as a result of the February 7, 2003 incident. Named as the sole Defendant in Coyle II is Crown Enterprises, Inc. ("Crown"), an entity allegedly hired by Leasco to maintain and control the Premises. On December 22, 2005, Crown removed the action to this court asserting diversity of citizenship under 28 U.S.C. § 1332 as the basis for subject matter jurisdiction. Crown's answer was filed on December 23, 2005.

On February 6, 2006, Crown moved in Coyle II to consolidate Coyle I and Coyle II in light of the fact that both actions seek recovery of monetary damages for personal injuries Plaintiffs sustained as a result of the February 7, 2003 incident. On April 7, 2006, Crown filed in Coyle II a third-party complaint ("the Third Party Complaint") against Con-Way Central Express, as part of Con-Way Transportation Services, Inc.*fn6

On April 11, 2006, Plaintiffs and Crown consented in Coyle II to proceed before the undersigned. Con-Way's answer to the Third Party Complaint was filed on May 8, 2006.

On September 28, 2006, the undersigned denied the motion to consolidate Coyle I and Coyle II. Accordingly, Coyle I is before the undersigned on referral from Chief District Judge Arcara, whereas Coyle II is before the undersigned on consent. Despite the undersigned's denial of Crown's motion to consolidate Coyle I with Coyle II, the parties filed a series of duplicate motions, with identical supporting papers, in both Coyle I and Coyle II.

On February 14, 2008, Plaintiffs filed a motion for summary judgment (Coyle I, Doc. No. 31) ("Plaintiffs' Summary Judgment Motion"), supported by the attached Affirmation of John Lloyd Egan, Esq. ("First Egan Affirmation"), and Exhibits A through H ("Plaintiffs' Exh(s). __"). Plaintiffs filed the same motion with identical supporting papers in Coyle II on February 19, 2008. (Coyle II, Doc. No. 45). In opposition to Plaintiffs' Summary Judgment Motion, on April 4, 2008, the Coyle I Defendants filed the Affidavit of William C. Altreuter, Esq. (Coyle I, Doc. No. 37) ("First Altreuter Affidavit"), and an identical affidavit in Coyle II. (Coyle II, Doc. No. 50).

On April 4, 2008, the Coyle I Defendants filed a motion for summary judgment (Coyle I, Doc. No. 38) ("Coyle I Defendants' Summary Judgment Motion"), supported by the attached Affidavit of William C. Altreuter, Esq. ("Second Altreuter Affidavit"), exhibits, the Affidavit of Larry Jacobs ("Jacobs Affidavit"),*fn7 the Affidavit of Tommaso Briatico ("Briatico Affidavit"), a Statement of Uncontested Facts ("Coyle I Defendants' Uncontested Facts Statement"), and a Memorandum of Law ("Coyle I ...


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