Baity v. Kralik

• Decision Date: 30 September 2014
• Docket Number: Case No. 12–CV–510 KMK.
• Parties: W. Terrell BAITY, Plaintiff, v. James F. KRALIK and County of Rockland, Defendants.
• Court: U.S. District Court — Southern District of New York

51 F.Supp.3d 414

W. Terrell BAITY, Plaintiff

v.James F. KRALIK and County of Rockland, Defendants.

Case No. 12–CV–510 KMK.

United States District Court, S.D. New York.

Signed Sept. 30, 2014.

Michael H. Sussman, Esq., Sussman & Wakins, Goshen, NY, for Plaintiff.

Eric Dranoff, Esq., Robert B. Weissman, Esq., Saretsky Katz Dranoff & Glass, L.L.P., New York, NY, for Defendants.

ORDER

KENNETH M. KARAS, District Judge:

Plaintiff W. Terrell Baity (“Baity”), by his counsel, Michael H. Sussman, brings this Action against Defendants James Kralik (“Kralik”) and the County of Rockland (“Rockland County” or “the County”), alleging that Defendants discriminated against him on the basis of his race by terminating him from his position as a probationary corrections officer with the Rockland County Department of Corrections. Before the Court is Defendants' Motion for Summary Judgment. (See Dkt. No. 26.) For the following reasons, Defendants Motion is Granted.

I. BACKGROUND

A. Plaintiff's Rule 56.1 Statement

“Local Civil Rule 56.1 calls for a summary judgment movant to submit ‘a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried,’ and for the opposing party to submit ‘a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.’ ” Johnson v. IAC/Interactive Corp., 2 F.Supp.3d 504, 507 (S.D.N.Y.2014) (quoting Local R. 56.1(a)-(b).) In responding to a Rule 56.1 statement, the party opposing the motion for summary judgment is “required by [the district's] Local Rules to specifically respond to the assertion of each purported undisputed fact by the movant and, if controverting any such fact, to support its position by citing to admissible evidence in the record.” Risco v. McHugh, 868 F.Supp.2d 75, 86 n. 2 (S.D.N.Y.2012) (citing Local Rule 56.1(b), (d), and Fed.R.Civ.P. 56(c) ). “If the opposing party then fails to controvert a fact set forth in the movant's Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule.” Johnson, 2 F.Supp.3d at 507 ; see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003). The purpose of this rule, and counsel's compliance with the same, is to assist the Court by narrowing the scope of the issues to be adjudicated and identifying the facts relevant and admissible to that determination. See Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir.2001) (“The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.”).

Plaintiff's Response to Defendants' Rule 56.1 Statement fails to comply with the spirit, if not the letter of the rule. (See Pl.'s Resp. to Defs.' Rule 56.1 Statement (“Pl.'s 56.1 Resp.”) (Dkt. No. 35).) Many of Plaintiff's purported denials—and a number of his admissions—improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants' asserted facts without specifically controverting those same facts. (See, e.g., Pl.'s 56.1 Resp. ¶¶ 32, 52, 56, 61, 75, 77, 78, 86, 88, 94, 95, 107, 108, 109, 115, 116, 130, 161, 162, 163, 169, 178, 179, 183, 191); see also Costello v. N.Y. State Nurses Ass'n, 783 F.Supp.2d 656, 661 n. 5 (S.D.N.Y.2011) (disregarding a plaintiff's responses to a defendant's Rule 56.1 Statement where the plaintiff responded with conclusory assertions or legal arguments). Furthermore, a number of Plaintiff's purported denials quibble with Defendants' phraseology, but do not address the factual substance asserted by Defendants. (See, e.g., Pl.'s 56.1 Resp. ¶¶ 29, 40, 52, 56, 58, 101, 103, 106.) In other instances, counsel neither admits nor denies a particular fact, but instead responds with equivocal statements such as: “Admit, but defendant omits the balance of plaintiff's testimony,” (Pl.'s 56.1 Resp. ¶ 75), “Admit, but note that she provided no counseling memorandum to plaintiff and never provided a copy of this document to the plaintiff,” (id. ¶ 86), “Deny. Plaintiff was interviewed one week before he commenced his employment and after he had passed his physical agility and psychological test and after he had been offered employ [ ]ment,” (id. ¶ 6 (in response to Defendants' statement about the date of Plaintiff's interview and the individuals who conducted the interview)), or “Deny as stated,” (id. ¶ 29). Some of Plaintiff's 56.1 statement responses include citations to evidence in the record, (see, e.g., Pl.'s 56.1 Resp. ¶¶ 6, 29), however, responses that “do not point to any evidence in the record that may create a genuine issue of material fact[ ] do not function as denials, and will be deemed admissions of the stated fact.” Risco, 868 F.Supp.2d at 86 n. 2 (internal quotation marks omitted) (quoting Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 458 n. 1 (S.D.N.Y.2011) ; see also Costello, 783 F.Supp.2d at 661 n. 5 (disregarding the plaintiff's responses where plaintiff failed to specifically dispute defendant's statements)); Buckman v. Calyon Sec., 817 F.Supp.2d 322, 328 n. 42 (S.D.N.Y.2011) (noting that “56.1 statements not explicitly denied by plaintiff are deemed admitted”); Geoghan v. Long Island R.R., No. 06–CV–1435, 2009 WL 982451, at *6 (E.D.N.Y. Apr. 9, 2009) (“Since plaintiff's response does not dispute the accuracy of the assertion, the assertion is deemed to be admitted by plaintiff for purposes of this motion.”). Lastly, several of Plaintiff's purported denials lack citations to admissible evidence or any evidence to support his contention, in violation of Fed. R. Civ. P. 56(c) and Local Rule 56.1. (See, e.g., Pl.'s 56.1 Resp. ¶¶ 4, 137, 138, 141, 155, 199); see also Holtz, 258 F.3d at 73–74 (explaining that where there are no citations to admissible evidence, or the cited materials do not support the purported undisputed facts in a party's Rule 56.1 statement, those assertions must be disregarded); Costello, 783 F.Supp.2d at 661 n. 5 (disregarding a plaintiff's responses to a defendant's Rule 56.1 statement where the plaintiff failed to refer to evidence in the record). “Allowing a Local Rule 56.1 statement to substitute for the admissibility requirement set forth in Fed.R.Civ.P. 56(e) ‘would be tantamount to the tail wagging the dog,’ ” and “would risk creating tension between Local Rule 56.1 and Fed.R.Civ.P. 56....” Holtz, 258 F.3d at 74 & n. 1 (quoting Rivera v. Nat'l R.R. Passenger Corp., 152 F.R.D. 479, 484 (S.D.N.Y.1993) ).

Plaintiff's counsel's submissions related to the instant Motion fail to cure the deficiencies in Plaintiff's 56.1 Statement and instead impede the Court's attempts to determine which, if any, material facts are in dispute. For example, Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment (“Pl.'s Mem.” (Dkt. No. 36)) contains no citations to the record, despite making a number of fact-based arguments. In addition, unlike the usual attorney affirmations, which merely attach copies of documents alleged to be relevant and admissible and identify those documents for the Court, Plaintiff's counsel submitted an affirmation that includes arguments and factual assertions. (See Aff. of Michael H. Sussman in Opp'n to Defs.' Mot. (“Sussman Aff.”) (Dkt. No. 38).) This affidavit improperly attempts to introduce exhibits without any authentication, (see Sussman Aff. ¶ 5), and further contains argument about how the Court should interpret these exhibits, (id. ¶ 8 (“An ‘investment’ of $12,000 is not very significant as against a county budget of over $680,000,000.”)). See also Fed.R.Civ.P. 56(c)(4) (providing that an affidavit or declaration used to oppose a motion 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). Accordingly, “[i]n resolving this motion, the Court has relied only on the exhibits to the affirmation that contain admissible evidence, and has not considered the improper assertions and arguments contained in the affirmation, or the exhibits to the affirmation containing inadmissible evidence.”Risco, 868 F.Supp.2d at 86 n. 2 (citing Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983) (“An affidavit of the opposing party's attorney which does not contain specific facts or is not based on first-hand knowledge is not entitled to any weight.”)); see also Little v. City of New York, 487 F.Supp.2d 426, 433 n. 2 (S.D.N.Y.2007) (“The law is clear that an attorney's affirmation that is not based on personal knowledge of the relevant facts is to be accorded no weight on a motion for summary judgment.”).

Plaintiff's Affidavit also contains a surfeit of improper averments, including statements not based on Plaintiff's personal knowledge and conclusory statements that are nothing more than speculation. (See, e.g., Pl.'s Aff. in Opp'n (“Baity Aff.”) ¶ 6 (Dkt. No. 37) (“We have progressive discipline at the jail for all officers and had any superior attached seriousness to these incidents, I would have been given a documented verbal counseling”), ¶ 7 (“[Correctional Officer] Helchowski ... developed a reputation for missing time during his probationary period ... [Plaintiff] had a reputation for excellent attendance and punctuality.”), ¶ 8 (describing the evaluation of Correctional Officer Dillon as noting “that he is a young officer learning the job” and concluding that “this is not positive language”).) See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 131 n. 12 (2d Cir.2004) (noting that district court was free to disregard hearsay statements and speculation in affidavits); Flaherty v. Filardi, ...