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Cross v. State Farm Ins. Co.

United States District Court, N.D. New York

February 22, 2013

Lawrence CROSS, Plaintiff,
STATE FARM INSURANCE COMPANY, and John Doe, Defendants.[1]

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[Copyrighted Material Omitted]

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Lawrence Cross, Cooperstown, NY, pro se.

Dan D. Kohane, Audrey A. Seeley, Hurwitz, Fine Law Firm, Buffalo, NY, for Defendant.


THOMAS J. McAVOY, Senior District Judge.


Plaintiff Lawrence Cross (" Plaintiff" ) commenced this action pro se asserting claims arising from an injury he allegedly suffered on October 2, 2007 " when a 2004 Toyota Camry Solara suddenly and unexpectedly accelerated striking plaintiff." See 2nd Am. Compl. ¶ 11, dkt. # 36. After the Court decided State Farm Mutual Automobile Insurance Company's [2] (" State Farm" or " Defendant" ) Rule 12(b)(6) motion, see dkt. # 60, Plaintiff has two remaining claims: breach of contract and violation of the New York No-Fault Law.

Presently before the Court are Defendant's motion for summary judgment [dkt. # 108]; Plaintiff's cross-motion for summary judgment [dkt. # 117]; Plaintiff's motion challenging the Court's decision to strike his reply/sur-reply papers [dkt. # 123]; Plaintiff's motion to appoint counsel for trial [dkt. # 125], and Plaintiff's motion for a judicial settlement conference [dkt. # 126].


The Court may grant summary judgment where " there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute is genuine if the relevant evidence is such that a reasonable jury could return a verdict for

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the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).[3] If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party must show, by affidavits or other evidence, admissible in form, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995). Fed.R.Civ.P. 56 provides that an affidavit submitted in opposition to a motion for summary judgment " must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). " [O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997) (citations omitted). " To be admissible in a summary judgment proceeding, an affidavit must be sworn to before an officer authorized to administer oaths, such as a notary public." Taylor & Fulton Packing, LLC v. Marco Int'l Foods, LLC, 2011 WL 6329194, at *4 n. 2 (E.D.N.Y. Dec. 16, 2011) (citation omitted). In the alternative, " under 28 U.S.C. § 1746, a unsworn declaration made under penalty of perjury has the same evidentiary weight as an affidavit if it includes language in substantially the same form as ‘ I declare (or certify, verify, or state) that the foregoing is true and correct’ followed by a signature and date of execution." Id. (citations omitted); see LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir.1999) (same). Hearsay evidence that would not be admissible if testified to at trial is not competent material on a Rule 56 motion. Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir.1999).

In determining whether to grant summary judgment, the Court must view all admissible facts in the light most favorable to the nonmoving party, but " only if there is a ‘ genuine’ dispute as to those facts." Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). The nonmoving party cannot defeat summary judgment by " simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, or by a factual argument based on " conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). In this regard, a party opposing a

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properly supported motion for summary judgment may not rest upon " mere allegations or denials" asserted in the pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998).

The Local Rules of the Northern District require a party moving for summary judgment to submit a " Statement of Material Facts" which sets forth, with citations to the record, each material fact about which the moving party contends there exists no genuine issue. N.D.N.Y.L.R. 7.1(a)(3). Once a properly supported Local Rule 7.1(a)(3) Statement is submitted, the party opposing the motion must

file a response to the [movant's] Statement of Material Facts. The nonmovant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The non-movant's response may also set forth any additional material facts that the non-movant contends are in dispute in separately numbered paragraphs. Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party.

Id. (underscoring in original).

The responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir.2005) (upholding grant of summary judgment where " [t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed [movant's] statement of facts to be admitted" because the non-movant submitted a responsive Rule 7.1(a)(3) statement that " offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations." ); Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir.1998) ( per curiam ) (accepting as true material facts contained in unopposed local rule statement of material facts); Meaney v. CHS Acquisition Corp., 103 F.Supp.2d 104, 108 (N.D.N.Y.2000) (deeming movant's Rule 7.1(a)(3) Statement admitted where non-movant's response " set forth no citations— specific or otherwise— to the record" ) (emphasis in original); McKnight v. Dormitory Auth. of State of N.Y., 189 F.R.D. 225, 227 (N.D.N.Y.1999) (McAvoy, J.) (" deem[ing] the portions of Defendants' 7.1(a)(3) statement that are not specifically controverted by Plaintiff to be admitted" ); Osier v. Broome County, 47 F.Supp.2d 311, 317 (N.D.N.Y.1999) (McAvoy, J.) (deeming admitted all facts in defendants' Rule 7.1(a)(3) statement where " plaintiff submitted thirteen pages of purported facts without any indication where those facts can be located in the record" ).

" [P]roceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment." Viscusi v. Proctor & Gamble, 2007 WL 2071546, at *9 (E.D.N.Y. July 16, 2007); see also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975) ( " The right of self-representation is not a license ... not to comply with relevant rules of procedural and substantive law." ). Thus, while the Court must construe a pro se litigant's pleadings and papers liberally and interpret them to raise the strongest arguments that they suggest,

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Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2003); [4] Veloz v. New York, 339 F.Supp.2d 505, 513 (S.D.N.Y.2004), the application of this lenient standard does not relieve a pro se litigant of the requirement to follow the procedural formalities of Local Rule 7.1(a)(3). Govan, 289 F.Supp.2d at 295; see also Edwards v. INS, 59 F.3d 5, 8 (2nd Cir.1995) (" While a pro se litigant's pleadings must be construed liberally, ... pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them." ).


Plaintiff has not: (1) submitted an opposing Statement of Material Facts despite being advised of this obligation; [5] (2) submitted a Statement of Material Facts in support of his cross-motion; (3) submitted an affidavit sworn to before an officer authorized to administer oaths, such as a notary public; (4) submitted an unsworn declaration made under penalty of perjury; [6] or (5) submitted other non-hearsay, admissible evidence. Accordingly, the properly supported facts set forth in Defendant's " Statement of Facts Pursuant to Local Rule 56" are deemed admitted for purposes of this motion. N.D.N.Y.L.R. 7.1(a)(3). Unless indicated otherwise, the following facts are taken from Defendant's Statement of Facts.

a. The Policy

State Farm issued an automobile liability insurance policy to Plaintiff's wife, Sharon L. Cross, bearing policy number 44 4469-C04-52B which was in effect on October

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2, 2007 (" the Policy" ). The Policy contained a Mandatory Personal Injury Protection Endorsement that provided in pertinent part:

* * * *
Proof of Claim; Medical, Work Loss, and Other Necessary Expenses.
* * * *
Upon request by the Company, the eligible injured person or that person's assignee or representative shall:
(a) execute a written proof of claim under oath;
(b) as may reasonably be required submit to examinations under oath by any person named by the ...

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