The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Crown Castle USA Inc., Crown Castle GT Company LLC, Crown Castle Atlantic LLC, Crown Atlantic Company LLC and Crown Communication Inc., (collectively "Crown") brought this action against Fred A. Nudd Corporation ("Nudd"), Underhill Consulting Engineers, P.C., George R. Underhill (collectively "Underhill"), Steven F. Carini and Derek R. Hartzell (collectively "defendants") alleging breach of contract, breach of express and implied warranty and misrepresentation, as well as professional negligence against defendants. Specifically, the Amended Complaint contains one cause of action against Underhill, alleging professional negligence based on Underhill's alleged failure to "utilize [its] professional skill, knowledge and/or expertise, in accordance with applicable generally accepted professional industry standards." Docket #123 at 20. Crown specifically alleges that Underhill breached its professional duty by certifying defective designs, during the period from 2001 through 2003, when Nudd allegedly engaged Underhill to perform "corrections work" on several of the monopoles at issue in this litigation, and that Underhill allegedly breached a duty he owed Crown to disclose that such monopoles were defective. Id.; See also Crown's Brief in Opposition to Underhill's Motion for Summary Judgment ("Crown's Brief"), Docket # 243 at 8.
Underhill moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56") with respect to monopoles numbered 806335, 806682, 816529, 816594, 816687, 816718 and 816795, arguing that there is no evidence that he performed any services with respect to these monopoles. See Underhill's Memorandum of Law ("Underhill's Brief"), Docket # 239 at 5. Underhill also seeks summary judgment with respect to monopoles numbered 816745 and 816592 because his review of replacement drawings for these poles in 2003 "bears no causal relationship to the damages alleged by Crown to have arisen from Crown's purchase of the monopole[s]...from a third party prior to October 2000." Id. Lastly, Underhill seeks summary judgment based on his review of the allegedly defective designs or replacement designs of certain monopoles between 2001 and 2003, because he did not owe a duty to inform Crown of any defect in these monopoles and because he did not misrepresent any alleged defect in any monopole design during this period. Id. at 6-12.
Crown opposes this motion and argues that summary judgment should not be granted with respect to monopoles 806335, 806682, 816529, 816594, 816687, 816718 and 816795, despite the lack of evidence concerning Underhill, because Underhill failed to properly retain records that may have contained evidence regarding these specific monopoles. Crown's Brief at 23. Crown argues, with respect to monopoles 816745 and 816592, that Underhill's 2003 analysis of monopole 816592 was misleading and that his replacement design for monopole 816745 was defective. Id. at 21-22. Crown further contends that Underhill had a duty to inform Crown of any defect in the monopoles reviewed by Underhill between 2001 and 2003 and that Underhill breached this duty, and the information provided to Crown about such monopoles was incomplete and misleading. Id. at 14.
For the reasons set forth below, Underhill's motion for summary judgment is granted in its entirety. Accordingly, Crown's Amended Complaint against Underhill is hereby dismissed with prejudice.
This is Underhill's third motion for summary judgment concerning this case. Accordingly, this Court assumes familiarity with the procedural and factual background of this case as set forth in its previous decisions and only the most pertinent facts as they relate to Underhill's motion for summary judgment are repeated here. See Crown Castle USA Inc. et al. v. Fred A. Nudd Corp., et al., 2007 WL 700901 (W.D.N.Y. March 1, 2007) ("March 2007 Order")(modified on reconsideration by Crown Castle USA Inc. et al. v. Fred A. Nudd Corp., et al., 2008 WL 163685 (W.D.N.Y.)); Crown Castle USA Inc. et al. v. Fred A. Nudd Corp., et al. 2009 WL 385442 (W.D.N.Y., February 12, 2009) ("February 2009 Order"). The Court denied as premature Underhill's first motion for summary judgment, as discovery was still ongoing. See Crown Castle USA Inc. et al. v. Fred A. Nudd Corp., et al., 2007 WL 700901 (W.D.N.Y. March 1, 2007) ("March 2007 Order"). The Court granted in part and denied in part Underhill's second motion for summary judgment, finding that (1) as to eight*fn1 of the monopoles at issue*fn2 , Crown was barred from bringing its claims by the applicable statute of limitations, (2) there was no evidence that Underhill provided any professional services with respect to twenty-two*fn3 of the monopoles at issue, and (3) there were genuine issues of material fact with respect to whether Underhill performed any services relating to the seven monopoles numbered 806335, 806682, 816529, 816594, 816687, 816718 and 816795. See February 2009 Order. In response to a request by Crown, following the February 2009 Order, this Court clarified in a letter that Crown's claim with respect to any alleged "corrections work" performed by Underhill from 2001 through 2003 had not been dismissed, as Underhill had not moved for summary judgment on that claim. See Docket #243-19.
A party is entitled to summary judgment if it can demonstrate "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c). On a motion for summary judgment, the court must consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Once the movant has " 'show[n]' " or "point[ed] out ... that there is an absence of evidence to support the non-movant['s] case," the burden shifts to the non-movant. See Celotex Corp. v. Catrett, 477 U.S. 317, 325-27 (1986). To discharge his burden, "a plaintiff must come forward with evidence to allow a reasonable jury to find in his favor" on each of the elements of his prima facie case. See Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir.2001).
The court must draw all factual inferences in favor of the party against whom summary judgment is sought and view the factual assertions in materials such as affidavits, exhibits, and depositions in the light most favorable to the non-movant. See Anderson, 477 U.S. at 255; Celotex Corp., 477 U.S. at 322. However, a non-movant benefits from such factual inferences "only if there is a 'genuine' dispute as to those facts." See Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776 (2007). The law is well established that "conclusory statements, conjecture, or speculation" are insufficient to defeat a motion for summary judgment. See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). The non-movant cannot survive summary judgment simply by proffering "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), or presenting evidence that "is merely colorable, or is not significantly probative." See Savino v. City of New York, 331 F.3d 63, 71 (2d Cir.2003) (quoting Anderson, 477 U.S. at 249-50, (citation omitted)). Rather, he must "set out specific facts showing a genuine issue for trial." See Fed.R.Civ.P. 56(e)(2); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998) ("non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of...events is not wholly fanciful.").
A. Monopoles Numbered 806335, 806682, 816529,816594, 816687, 816718 and 816795 Underhill argues that summary judgment is appropriate with respect to these seven monopoles because discovery has not produced evidence that Underhill performed any services related to these specific monopoles. See Underhill's Brief at 3, 5. Crown contends that summary judgment should not be granted because Underhill failed to maintain records that may have demonstrated that Underhill performed services on these monopoles*fn4 . See Crown's Brief at 23. Having already afforded the parties ample time*fn5 to conduct additional discovery relating to these seven monopoles, this Court finds that summary judgment is appropriate, as there is no evidence that would lead a reasonable juror to find in favor of Crown. See Scott, 550 U.S. at 380 (citing Matsushita, 475 U.S. at 586-587 (a grant of summary judgment is appropriate if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party).
Underhill stated in its affidavit in support of this motion that it had not perform services on these monopoles. See Docket #239-2 at 3-4. Crown's assertion that Underhill failed to retain records that may have proved otherwise is insufficient to withstand a motion for summary judgment, as it has not set forth specific facts showing a genuine issue for trial. See Fed.R.Civ.P. 56(e)(2). As there is no evidence that Underhill performed any services, including corrective services, on these seven monopoles, summary judgment is ...