The opinion of the court was delivered by: Kenneth M. Karas, District Judge:
Jean Y. Denis ("Plaintiff") brings this diversity action against the Town of Haverstraw and Police Officer McManus ("Officer McManus") in his official capacity (collectively, "Defendants"). Plaintiff alleges that he was injured by the negligence of Officer McManus in directing Plaintiff's car across a railroad crossing at the intersection of Short Clove Road and Route 9W in the Town of Haverstraw, New York, and that as a result, Plaintiff's car was hit by an oncoming CSX train. Defendants move for summary judgment. For the reasons stated herein, Defendants' motion is granted.
A. Facts The relevant facts, which detail the events leading up to Plaintiff's car being struck by a CSX train, are taken primarily from the Parties' Local Civil Rule 56.1 Statements. Any disputes are noted herein, but as discussed below, do not determine the outcome of the motion. On November 5, 2008, at approximately 6:35 p.m., Officer McManus, of the Town of Haverstraw Police Department, responded to a two car accident on Route 9W near its intersection with Short Clove Road in the Town of Haverstraw, New York. (Defs.' Statement of Material Facts Pursuant to Local R. 56.1 ("Defs.' 56.1") ¶ 1; Pl.'s Statement of Material Facts Pursuant to Local R. 56.1 ("Pl.'s 56.1") ¶ 1.) Police Officer De La Rosa was also at the accident scene and was directing traffic while Officer McManus completed the accident report. (Defs.' 56.1 ¶ 2; Dep. of Police Officer McManus ("McManus Dep.") 21:16-22:24.) Defendants claim that Officer McManus parked his police car on the shoulder of Route 9W, just south of its intersection with Short Clove Road (Defs.' 56.1 ¶ 1), while Plaintiff claims that there were two police cars blocking the intersection of Route 9W and Short Clove Road, (Pl.'s 56.1 ¶ 1). At approximately 7:00 p.m., Plaintiff was driving south-west on Short Clove Road in a 1991 Mercedes Benz 300 SE and approached the intersection of Short Clove Road and Route 9W. (Defs.' 56.1 ¶ 3.) Plaintiff stopped his car on Short Clove Road behind the railroad tracks, which cross Short Clove Road and run parallel to Route 9W, and waited for the officers to clear the accident on Route 9W. (Defs.' 56.1 ¶ 4; Pl.'s 56.1 ¶ 4.) Plaintiff claims that he was waiting for the police officers to move their cars so he could cross the train tracks and turn onto Route 9W. (Pl.'s 56.1 ¶ 4; Dep. of Jean Y. Denis ("Denis Dep.") 26:25-27:10.)
There is a dispute of fact as to how far behind the train tracks Plaintiff stopped his car. During Plaintiff's hearing pursuant to New York General Municipal Law § 50-h, he stated that he stopped his car approximately twelve to fourteen feet from the tracks. (50-h Hr'g of Jean Y. Denis ("Denis 50-h Tr.") 17:13-24.) However, during his deposition, Plaintiff stated several times that he was approximately four to five feet behind the tracks. (Denis Dep. 23:18-21, 25:16-20, 34:14-16, 87:20-24.) Officer McManus testified at his deposition that when he first saw Plaintiff's car, it was about one or two feet away from the railroad tracks. (McManus Dep. 29:3-7.) Again, the dispute is not relevant here.
When Plaintiff stopped his car on Short Clove Road on the far side of the railroad tracks, there were no cars between his vehicle and Route 9W. (Defs.' 56.1 ¶ 5; Pl.'s 56.1 ¶ 5.) The railroad crossing gates were up (Pl.'s 56.1 ¶ 6), and Plaintiff's car was positioned between the crossing gate farthest from Route 9W and the train tracks, (Denis Dep. 29:17-30:24, 33:10-17). Defendants have measured the exact distances from the railroad tracks to each crossing arm and the distance from the tracks to the railroad crossings arm closest to Route 9W is 21 feet, 6 inches, while the distance from the tracks to the railroad crossing gate farthest from Route 9W (where Plaintiff's car was stopped) is 52 feet, 0 inches. (Aff. of Lt. Martin Lund ¶¶ 6-7.) Therefore, the Court disregards contradictory statements regarding these distances from Plaintiff's 56.1 Statement ¶ 6 and from Officer McManus' deposition testimony, though the precise distances are not dispositive here. Defendants also have included in the record the official specifications for Plaintiff's car and the Court notes that the car measures 202.6 inches in length. (Decl. in Supp. of Mot. for Summ. J. ("Defs.' Decl.") Ex. I.)
Plaintiff and Defendants give different accounts of the events which led to Plaintiff's car being struck by the CSX train. Officer McManus claims that when he first noticed Plaintiff's car, Plaintiff was stopped about one to two feet from the railroad tracks and Officer De La Rosa was directing the car to back up by "putting his hands out and pushing them away from his body and yelling at the driver to back up repeatedly . . . ." (McManus Dep. 29:3-24.) According to Officer McManus, he then got out of his patrol car on Route 9W and assisted Officer De La Rosa with "giving the verbal commands and the hand signals for [Plaintiff] to back up." (Id. at 33:9-12.) Officer McManus claims that he and De La Rosa were signaling for Plaintiff to move his car back because the railroad crossing gates had come down and Plaintiff was only a foot or two away from the tracks, which was in the "danger zone" for being struck by the train. (Id. at 33:17-34:12; Defs.' 56.1 ¶¶ 6-8; Defs.' Decl. Ex. C (Police Accident Report).) Although Plaintiff was inside the crossing arm, Officer McManus believed that there was enough room between the tracks and the crossing arm for Plaintiff to back up and safely avoid the train. (Defs.' 56.1 ¶ 8; McManus Dep. 41:19-42:3.) Officer McManus testified that the crossing arms were already down when he first observed Plaintiff's car. (McManus Dep. 34:13-35:6.) He claims that for several seconds, Plaintiff did not react to their commands to back up and that four or five seconds later, Plaintiff started to inch his vehicle forward onto the tracks, at which point Officer McManus started screaming and signaling "stop, stop[;] [g]et back, get back." (Id. at 38:6-39:6.) However, Plaintiff did not back up and instead stopped his car halfway on the railroad tracks. (Id. at 39:7-11.) About four or five seconds later, McManus observed the lights from the southbound train approaching the crossing (id. at 40:7-23), and ran towards Plaintiff's car, at which point Plaintiff exited the car and ran away from the train, (id. at 42:5-15, 42:22-44:11). The train then struck Plaintiff's vehicle. (Id. at 44:13-18.)
Plaintiff claims that after he waited approximately fifteen to twenty minutes on Short Clove Road, the accident scene on Route 9W had been cleared, and Officer McManus signaled to Plaintiff to cross the tracks by lifting both of his arms and moving them towards his body. (Pl.'s 56.1 ¶ 7; Denis Dep. 35:3-5, 90:21-93:18; Denis 50-h Tr. 25:13-26:11.) Plaintiff claims that at this point, the railroad crossing arms were still up (Denis Dep. 97:6-13; Denis 50-h Tr. 23:16-19), and Plaintiff moved his car about halfway onto the railroad tracks, (Denis Dep. 94:2-16). Plaintiff claims that once his car was halfway onto the tracks, Officer McManus began signaling to Plaintiff to back up (id. at 94:14-22), and Plaintiff then noticed the crossing arms coming down and the train approaching, (id. at 97:6-10). The CSX Accident Report prepared shortly after the accident also states "driver of 1991 Mercedes Benz was waived past the accident and started to enter the railroad crossing when the signal lights started to flash[;] [t]he motorist stopped his vehicle in the crossing." (Decl. in Opp'n to Defs.' Mot. for Summ. J ("Pl.'s Decl.") Ex. B.) Plaintiff claims that about one and a half seconds elapsed between the time that Officer McManus signaled him to move forward and when the crossing arms started moving down. (Denis Dep. 100:6-16.) Plaintiff claims he could not back up because the crossing arm was blocking him (id. at 99:6-8, 101:21-102:6), and that when he saw the train he began to panic, (id. at 95:2-4).*fn1 Plaintiff testified that Officer McManus approached his car and yelled "get out of that car a train is coming," at which point Plaintiff jumped out of the car and ran away from the approaching train. (Id. at 102:14-103:25, 105:3-10.) Plaintiff claims that he fell as he was exiting the car and sustained injuries to his neck, back, and shoulder. (Denis 50-h Tr. 4:5-19; Denis Dep. 45:24-47:18, 48:22-49:3, 58:5-79:20, 103:23-105:2.) Seconds later, the train hit Plaintiff's car. (Denis Dep. 105:5-10.)
Plaintiff filed his Complaint in New York State
Supreme Court, Rockland County on December 14, 2009, naming the Town
of Haverstraw, Police Officer McManus, CSX Corporation, CSX
Transportation, Inc., CSX Intermodal, Inc., and David Harmon as
Defendants. The Complaint alleges two causes of action, one alleging
negligence against the Town of Haverstraw and Officer McManus (Compl.
¶¶ 12-22), and the other alleging negligence against the CSX
Defendants and David Harmon, (id. ¶¶ 23-42). A Notice of Removal was
filed with this Court on January 28, 2010, and the case was removed
pursuant to 28 U.S.C. §§ 1441 and 1332. (Dkt. No. 1.)*fn2
Defendants answered on January 29, 2010 (Dkt. No. 2), and
February 17, 2010, (Dkt. No. 3). Plaintiff filed a motion to remand on
March 2, 2010 (Dkt. Nos. 5, 6), which was denied by the Court on March
3, 2010 for failure to follow the Court's individual rules, (Dkt. No.
7). Plaintiff did not attempt to re-file the motion.*fn3
On January 10, 2011, it was stipulated that all claims
against Defendants CSX Corporation, CSX Transportation, Inc., and CSX
Intermodal, Inc. were dismissed with prejudice. (Dkt. No.
21.)*fn4 On June 22, 2011, remaining Defendants Town of Haverstraw and Police Officer McManus
filed their Motion for Summary Judgment. (Dkt. No. 27.)
A. Standard of Review Summary judgment may be granted where it is shown "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (same). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dall. Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003); see also Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d Cir. 2006) (noting that a court must draw all reasonable inferences in the non-movant's favor).
A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005). "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted). "When the moving party has carried its burden under Rule 56, its opponent must 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) (footnote omitted); see also McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."). "A fact is 'material' when it might affect the outcome of the suit under governing law." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted). At summary judgment, a court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. See Westinghouse Elec. Corp. v. N.Y.C. Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990). A court's goal should be "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24.
B. Analysis -- Governmental Function Immunity Defense Defendants argue that they are entitled to judgment as a matter of law because under New York law, a "municipal defendant is immune from liability for conduct involving the exercise of discretion and reasoned judgment." (Mem. of Law in Supp. of Defs.' Mot. for Summ. J ("Defs.' Mem.") 5 (internal quotation marks omitted).) Plaintiff responds that even if Defendants were performing a discretionary function, they can be held liable for their negligent actions where they have established a "special relationship" with Plaintiff. (Mem. of Law in Opp'n to Defs.' Mot. for Summ. J ("Pl.'s Mem.") 3.) However, in McLean v. City of New York, 905 N.E.2d 1167, 1174-75 (N.Y. 2009) and Valdez v. City of New York, 960 N.E.2d 356, 361-62 (N.Y. 2011), the New York Court of Appeals unequivocally ...