UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
April 25, 2012
KENNETH KERRIGAN ET AL., PLAINTIFFS,
NEW YORK STATE ELECTRIC & GAS CORPORATION ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gary L. Sharpe Chief Judge
MEMORANDUM-DECISION AND ORDER
Plaintiffs Kenneth Kerrigan (Kerrigan) and his wife, Tammy Kerrigan, commenced this action pursuant to 28 U.S.C. § 1332 against defendants New York State Electric & Gas Corporation (NYSEG), Comcast Corporation, and Verizon Communications, Inc., seeking damages for personal injuries sustained by Kerrigan. (See Compl., Dkt. No. 1.) Pending is Comcast's motion for summary judgment dismissing the Complaint and all cross claims against it. (See Dkt. No. 25.) For the reasons that follow, the motion is denied as premature.
A. Facts*fn1 On October 29, 2010, Kerrigan sustained an injury while working for
Hawkeye, LLC, a company that was previously hired by NYSEG to "provide line construction and related services," in the Town of Carmel, Putnam County. (Def. Comcast's Statement of Material Facts (SMF) ¶¶ 1, 2, 6, 12, Dkt. No. 25, Attach. 1.) While a Hawkeye work crew was "performing certain work on the utility poles located at or about 151 Shear Hill Road," Kerrigan's co-worker, Vanner Kenneth, was directed to move a truck with an attached trailer "to allow traffic to move around an obstruction." (Id. ¶¶ 7-10.) Kerrigan, who was directing traffic at the time that Kenneth moved the truck and trailer, was struck by the trailer and injured. (Id. ¶¶ 11-12.) "The vehicle that struck [Kerrigan] at the time of the accident was neither owned by Comcast nor operated by a Comcast employee"; it is also clear that "no Comcast employees, contractors or subcontractors [were] present at or about the location of the accident." (Id. ¶¶ 13, 17, 19.)
B. Procedural History
Plaintiffs filed their Complaint on November 7, 2011, asserting common-law negligence, violations of N.Y. Labor Law §§ 200, 240, and 241, and a derivative claim for loss of consortium against all defendants.*fn2
(See Compl. ¶¶ 26-45.) Defendants separately answered and each alleged cross claims against the others. (See Dkt. Nos. 7, 10, 12, 14-19.) Comcast filed the instant summary judgment motion before appearing for a Rule 16 conference or engaging in any discovery.*fn3 (See Dkt. No. 25.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its recent decision in Wagner v. Swarts, No. 1:09--cv--652, 2011 WL 5599571, *4 (N.D.N.Y. Nov. 17, 2011).
Comcast contends that the Complaint and all cross claims should be dismissed in their entirety as against it. (See generally Dkt. No. 25, Attach. 16 at 7-18.) The Kerrigans counter, and the court agrees, that the motion is premature and should be denied. (See Dkt. No. 2-5.)
As relevant here, when a non-movant is able to show "by affidavit or declaration that, for specific reasons, it cannot present facts essential to justify its opposition [to a summary judgment motion], the court may . . . defer considering the motion or deny it." Fed. R. Civ. P. 56(d). Because plaintiffs have submitted an affidavit sufficiently setting forth their inability to present facts essential to justify their opposition to this motion, (see Dkt. No. 27), the court deems it appropriate to deny the motion as premature with leave to renew at a proper time.
WHEREFORE, for the foregoing reasons, it is hereby ORDERED that plaintiff's N.Y. Labor Law § 240(1) claim against Comcast (Dkt. No. 1) is DISMISSED as withdrawn; and it is further
ORDERED that Comcast's motion (Dkt. No. 25) is DENIED as premature with leave to renew; and it is further
ORDERED that the parties contact Magistrate Judge Baxter to schedule further proceedings in accordance with this Memorandum--Decision and Order; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.