The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Michael E. Maloney brought this action against his employer, CSX Transportation, Inc., under the Federal Employers' Liability Act (FELA)*fn1 alleging CSX's liability for injuries he sustained to his right and left hip and his cervical spine during the course of his employment. (Compl., Dkt. No. 1.) Pending is CSX's motion to dismiss. (Dkt. No. 6.) For the reasons that follow, the motion is denied.
In March 1975, Maloney began his employment with Penn Central Railroad as a carman. (See Compl. ¶ 11, Dkt. No. 1:4.) Penn Central later merged into Consolidated Rail (Conrail), which CSX subsequently acquired. (See id.) As a carman, Maloney served in a variety of positions, including departure yard inspector and repairman, shop repairman, and shop supervisor. (See id.) Pursuant to his duties, Maloney inspected railcars and frequently worked on concrete floors and road ballast. (See id. at ¶ 13.)
According to Maloney, his employment exposed him to "harmful repetitive motion, cumulative trauma, awkward work postures, vibration, temperature extremes and other harmful conditions resulting from the railroad's equipment, work policies and procedures." (Id.) As a result, Maloney alleges that he suffers from repetitive injuries to his hips and neck which have harmed the quality of his life, have required surgery, and may permanently affect his health. (See id. at ¶¶ 14-15.)
On July 14, 2008, Maloney filed an action against CSX in the Circuit Court for the City of Portsmouth, Virginia. (See Dkt. No. 1:5.) On August 3, 2009, the action was dismissed without prejudice based on concerns of inconvenience. (See id.) However, as a condition of dismissal, Maloney was given sixty days to file suit in the United States District Court for the Northern District of New York, during which time the statute of limitations would be tolled. (See id.) In addition, the August 3, 2009 Order stipulated that the effective date for limitations purposes would remain the date Maloney filed his original complaint, July 14, 2008. (See id.)
On September 22, 2009, Maloney commenced the present action in this court under FELA, claiming that CSX, among other things, negligently failed to provide Maloney with a reasonably safe place to work, failed to warn of and protect him from known or foreseeable dangers, failed to provide him with adequate training, education, and equipment, failed to develop proper procedures for performing his work or controls necessary to limit exposure to dangerous conditions, failed to monitor his and other employees' medical conditions, failed to inspect work areas, and "expos[ed] him to foreseeably dangerous levels of repetitive motion, awkward postures, high forces, vibration, heat and cold and other work place dangers." (Compl. ¶ 18, Dkt. No. 1:4.) Specific to CSX's failure to educate and monitor, Maloney claims that CSX was aware of the need to screen and monitor his exposure to harmful work conditions and failed to either perform such screening and monitoring or educate and warn Maloney about the occupational risks associated with musculoskeletal disorders. (See id. at ¶¶ 19-21.) And consequent to CSX's alleged breach and causal role, Maloney seeks damages for lost wages, medical expenses, and pain, suffering, disfigurement, and mental anguish. (See id. at ¶ 16.) On October 13, 2009, CSX moved to dismiss Maloney's claim, or in the alternative, to strike certain allegations contained in the complaint. (See Dkt. No. 6.)
The standard of review under FED. R. CIV. P. 12(b)(6) is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Dixon v. Albany County Bd. of Elections, No. 1:08-CV-502, 2008 WL 4238708, at *2 (N.D.N.Y. Sept. 8, 2008).
CSX argues that Maloney's claim for relief is not "plausible" and that his complaint fails to set forth anything beyond legal conclusions and speculation. (See Def. Mem. of Law at 5,Dkt. No. 6:7.) In particular, CSX contends that Maloney does not articulate any facts as to the accrual of his claim, that Maloney previously executed two releases on the claim asserted here, and that the releases also expose the untimeliness of his claim. (See id. at 6, 9-10.) Maloney's response is that CSX's reliance on evidence of past releases is inappropriate at this stage, that the 2007 ...