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Krivchenko v. Clintondale Aviation, Inc.

United States District Court, N.D. New York

September 18, 2014

ALEXANDER KRIVCHENKO, as Personal Representative of the Estate of TATYANA PETROVNA KRIVCHENKO, deceased, NATALIA MASLOVA, as Personal Representative of the Estate of DMITRY VLADIMIROVICH MASLOV, deceased, IGOR OSIPOV, as the Personal Representative of the Estate of LYUBOV VICTORVNA OSIPOVA, deceased, IGOR OSIPOV, as the Personal Representative of the Estate of ANASTASIA OSIPOVA, deceased, IGOR OSIPOV, as the Personal Representative of the Estate of GREGORY IGOREVICH OSIPOV, deceased, NADEZHDA PETTAY, as the Personal Representative of the Estate of VLADIMIR LEONIDOVICH PETTAY, deceased, OLGA LOKHMATOVA, as the Personal Represenative of the Estate of FARKHAD SAMATOVICH SAMATOV, deceased, and SVETLANA SOFRINA, as the Personal Representative of the Estate of PAVEL GENNADYEVICH SOFRIN, deceased, Plaintiffs,


THOMAS J. McAVOY, Senior District Judge.

Before the court are Defendant's motion for summary judgment and Plaintiffs' motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) in this case involving the fatal crash of an commercial airliner in Petrozavodsk, Russia in 2011. The parties have filed oppositions to these motions.


This action arises out of the crash of RusAir Flight 9605 ("Flight 9605") in Petrozavodsk, Russia on June 20, 2011. (Defendant's Statement of Material Facts, dkt. # 22 ("Defendant's Statement") at ¶ 1a[2]). The crash resulted in the deaths of 39 passengers and 8 crew members. (Id.). The Plaintiffs in this action are Russian citizens who are the representatives of the estates of a number of passengers who died in the crash. (Id. at ¶ 1b). The Defendant, Clintondale Aviation, Inc. ("Clintondale") is a closely held New York corporation with a principal place of business in Ulster County, New York. (Id. at ¶ 2). Clintondale brokers air charter services to individuals and corporations traveling within the Russian Federation and the former Soviet Republics. (Id. at ¶ 3). The flight that crashed and is the subject of this action was operated by RusAir, a Russian Closed Joint-Stock Aviation Company. (Id. at ¶ 4). Rus Air was the registered owner of that aircraft. (Id.). Flight 9605 was chartered by RusLine, another Russian Closed Joint-Stock Aviation Company. (Id. at ¶ 5).

Flight 9605 crashed on June 20, 2011. On that date, RusLine had chartered RusAir to transport 43 passengers from Moscow, Russia to Petrozavodsk, Russia. (Id. at ¶ 8). RusAir operated that flight, which was marketed as RusLine Flight 234. (Id. at ¶ 9). The airplane crashed during its landing approach. (Id. at ¶ 10). RusAir's flight crew had attempted to land in poor conditions without visual confirmation of the airport's runway. (Id.). As a result, thirty-nine passengers and eight crew members were killed. (Id. at ¶ 11).

Neither RusAir or RusLine is a party to this action. (Id. at ¶ 5). Clintondale did not own, operate, manage, control or act on behalf of RusAir at any time from the company's formation to the present. (Id. at ¶ 6). Clintondale did not operate or charter Flight 9605 and did not own the aircraft involved in the accident. (Id. at ¶ 7). Clintondale was formed by seven individuals in 1992. (Id. at ¶ 12). Among those individuals was Clintondale's current President and Chief Executive Officer, Yuri Konovalov. (Id.). Konovalov joined with six other investors in 1996 to form RusAir. (Id. at ¶ 13). None of these other individuals had any involvement with Clintondale. (Id.). Apart from Konovalov, Clintondale and RusAir did not share any shareholders or directors. (Id. at ¶ 14).

After the investors formed RusAir, Clintondale contracted with the company on a non-exclusive basis for air transportation for Clintondale clients within the Russian Federation. (Id. at ¶ 15). Konovalov held shares in both RusAir and Clintondale from 1994 to 2008. (Id. at ¶ 16). RusAir and Clintondale remained separate and district companies during this period. (Id.). Konovalov did not manage or direct the daily operations of RusAir, either individually or in his capacity as Clintondale President. (Id. at ¶ 17). Clintondale had no control over RusAir's daily activities. (Id.). RusAir appointed Yuri M. Shanin as the Director General of RusAir; Shanin was responsible for operations and management of the company. (Id. at ¶ 18). Shanin reported to the RusAir board of directors. (Id. at ¶ 19). He was responsible for hiring, firing and supervising the company's employees. (Id.).

RusAir and Clintondale operated as separate entities. RusAir was responsible for its aircrafts' maintenance. (Id. at ¶ 20). The company implemented a safety maintenance program. (Id.). This "Technical Support and Control Group" was designed to improve RusAir's operations by undertaking maintenance and safety audits on RusAir-operated aircraft. (Id.). RusAir and Clintondale had separate finances and revenue bases. (Id. at ¶ 21). The companies filed separate taxes. (Id.). Clintondale had offices in Moscow that the company rented. (Id. at ¶ 22). These offices were used only for Clintondale's operations and used solely by Clintondale employees. (Id.). Clintondale also owned separate corporate property. (Id. at ¶ 23). Among this property was a TU-134 aircraft that Clintondale leased to RusAir in 2009 through a "Dry Lease Agreement."[3] This aircraft was not involved in the June 20, 2011 accident. (Id. at ¶ 24).

Konovalov and the other founding members of RusAir sold their shares to two Russians, Valentina Kiselkova and Galina Kuprikova, in October 2008. (Id. at ¶ 25). Since this sale, Clintondale and RusAir have remained separate entities with no overlapping ownership or management. (Id. at ¶ 26).

Plaintiffs filed their complaint in this action on June 20, 2013. (See dkt. # 1). On June 17, 2014, Defendant filed the instant motion for summary judgment, along with supporting documents. (See dkts. 20-24). Plaintiffs filed both a response to the motion for summary judgment and a motion to voluntarily dismiss the complaint pursuant to Federal Rule of Civil Procedure 41(a)(2). Defendant responded to these filings, bringing the case to its present posture.


For reasons that will become apparent, the Court will first address Plaintiff's motion for voluntary dismissal. Federal Rule of Civil Procedure 41(a)(2) provides in relevant part that "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." FED. R. CIV. P. 41(a)(2). "[D]ismissals" under this rule "are at the court's discretion[.]" D'Alto v. Dahon California, Inc. , 100 F.3d 281, 283 (2d Cir. 1996). "A voluntary dismissal without prejudice under Rule 41(a)(2) will be allowed if the defendant will not be prejudiced thereby.'" Id . (quoting Wakefield v. Northern Telecom, Inc. , 769 F.2d 109, 114 (2d Cir. 1985)). Such prejudice often occurs "when the cause has proceeded so far that the defendant is in a position to demand on the pleadings an opportunity to seek affirmative relief and he would be prejudiced by being remitted to a separate action.'" Id . (quoting Jones v. Securities & Exchange Commission , 298 U.S. 1, 19 (1936)). In the Second Circuit, courts consider a number of factors in determining whether the defendant would be prejudiced by dismissal. Id . Such "factors include: [1] the plaintiff's diligence in bringing the motion; [2] any undue vexatiousness' on plaintiff's part; [3] the extent to which the suit has progressed, including the defendant's efforts and expense in preparation for trial; [4] the duplicative expense of relitigation; and [5] the adequacy of plaintiff's explanation for the need to dismiss.'" Id . (quoting Zagano v. Fordham Univ. , 900 F.2d 12, 14 (2d Cir. 1990)).

Defendant seeks summary judgment. It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams , 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby , 477 U.S. 242, 248 (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 (1986). 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 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in ...

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