United States District Court, S.D. New York
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge.
Plaintiff Lisa Hall asserts that Defendants New Jersey Transit's ("NJ Transit") and National Railroad Passenger Corporation d/b/a Amtrak's ("Amtrak") negligence caused her personal injuries. N.J. Transit and Amtrak, as Third-Party Plaintiffs, have filed cross-claims against Guardian Service Industries, Inc. ("Guardian") for contribution, common law and contractual indemnity, and breach of contract. Guardian, as Second Third-Party Plaintiff, has filed cross-claims against Second Third-Party Defendant Otis Elevator Company ("Otis") for contribution, common law and contractual indemnity, and breach of contract.
Otis moves for summary judgment on all claims asserted by Guardian against it. Otis also moves to dismiss Guardian's breach of contract claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Guardian does not oppose Otis' motion, but instead has submitted a proposed stipulation to dismiss its claims against Otis without prejudice. In its reply, Otis objects to the stipulation and states that it seeks summary judgment in order to dismiss Guardian's claims with prejudice. For the reasons below, Otis' unopposed motion for summary judgment is granted. Otis' unopposed motion to dismiss is denied as moot.
The facts are taken from Otis' Local Rule 56.1 statement, submissions made in connection with this motion, and the pleadings filed in this action. As required on this motion, the facts are construed in favor of the non-moving party, Guardian.
In 2008, Guardian and N.J. Transit entered into a contract for Guardian to provide "Elevator/Escalator Maintenance" at New York Penn Station. Guardian and a third party then entered into a contract for elevator/escalator maintenance at Penn Station. In or around June 2010, the third party assigned that contract to Otis, and Otis assumed responsibility for maintaining the escalators at Penn Station. The contract provided in substance that Otis would defend and indemnify Guardian for injuries arising out of or occurring in connection with the execution of its work.
Otis serviced Escalator Unit 1B on December 22, 2010, and it examined that escalator on December 23, 2010. Escalator Unit 1B was functioning properly at the time. Otis did not receive any complaint about the condition or operation of Escalator Unit 1B between December 23, 2010, and the early morning hours of January 1, 2011.
On December 31, 2010, Plaintiff arrived at New York Penn Station around 11:30 p.m. When her train to Newark, New Jersey, was announced, Plaintiff waited for the crowd to "dissipate a little bit" before proceeding towards her train on Track 2. When Plaintiff was approximately halfway down Escalator Unit 1B, she heard someone yell that the escalator was backed up and that people should go back upstairs. In response, Plaintiff turned around to head back up, but "there were so many people that [she] fell." Others fell on her. As the escalator continued to operate in the descending direction, Plaintiff slid feet first to the bottom of the escalator. The escalator came to a stop after someone yelled out "push the red button."
II. LEGAL STANDARD
The standard for summary judgment is well established. Summary judgment is appropriate where the record before the Court establishes that there is no "genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute as to a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Courts must construe the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party's favor. See id. at 255.
A "non-response" entitles a court to deem any "unresponded-to statements of undisputed facts proffered by the movant [as]... admitted." Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014). However, even "when a party... fails to respond to an opponent's motion for summary judgment, a district court... must examine the movant's statement of undisputed facts and the proffered record support and determine whether the movant is entitled to summary judgment." Id. at 197.
Otis meets its burden of showing that it is entitled to summary judgment on ...