Beck v. Consolidated Rail Corp., 04 CIV. 00221(CM).

• Decision Date: 13 October 2005
• Docket Number: No. 04 CIV. 00221(CM).,04 CIV. 00221(CM).
• Citation: 394 F.Supp.2d 632
• Parties: Marion BECK and Solomon Beck, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

394 F.Supp.2d 632

Marion BECK and Solomon Beck, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.

No. 04 CIV. 00221(CM).

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

October 13, 2005.

COPYRIGHT MATERIAL OMITTED

William T. Jaye, Edelman, Krasin & Jaye, PLLC, Carle Place, NY, for Plaintiff.

Bruce R. Calderon, Steven Verveniotis, Miranda & Sokoloff, LLP, Mineola, NY, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MCMAHON, District Judge.

Plaintiffs bring this action against Consolidated Rail Corporation ("Conrail") alleging that Defendant negligently failed to maintain the property under its control, leading to Plaintiffs' injuries. Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that, on the date of Marion Beck's accident, Conrail did not own, manage and/or control the premises, and thus owned no duty to Plaintiffs. Plaintiffs request a denial of the Defendant's motion and, in the alternate, request leave to add two new Defendants as parties to this action.

For the reasons stated below, Defendant's motion for summary judgment is granted, and, accordingly, the Plaintiffs' claim against Conrail for negligence is dismissed. Plaintiffs' request for leave to add new Defendants is denied.

I. BACKGROUND

The following material facts are undisputed by the parties. On September 8, 2001, Plaintiff Marion Beck ("Beck") drove with her daughter to Callicoon, New York, located in the town of Delaware. Def. Stmnt. at ¶ 4. After parking her car in a lot at approximately 2:30 in the afternoon, Beck walked across a sidewalk intending to cross the street. Complaint ("Cplt.") at ¶ 12. As Beck stepped on the edge of the sidewalk, the concrete curb broke under her foot, causing her to fall forward into the street. Id.; Def. Stmnt. at ¶ 11-12. Beck commenced this action on October 15, 2003, alleging negligence and seeking damages for her injuries. Simon Beck, Marion Beck's husband, also brings a claim for loss of services and consortium. Cplt. at ¶ 18-20.

The property in question was the subject of a lease agreement, dated December 6, 1985, between Conrail, as lessor, and the Town of Delaware, as lessee. See Defendant's Rule 56.1 Statement of Undisputed Facts ("Def.Stmnt.") at ¶ 23. Section 10 of the lease agreement provides, inter alia, that the "[l]essee shall perform all maintenance and repair of any nature, interior and exterior, ordinary and extraordinary, to the Premises ... necessary to keep the Premises ... in good order and in safe condition...." Id. at ¶ 24.

In a deed dated June 1, 1999, Conrail transferred all its right, title, and interest in the property in question to its wholly-owned subsidiary Pennsylvania Lines LLC ("Penn Lines"). Def. Stmnt. at ¶ 21. The deed was validly recorded in the Sullivan County Clerk's Office on August 20, 1999. Id. On the same date, Penn Lines entered into an agreement with Norfolk Southern Corporation ("Norfolk"), granting Norfolk the right to operate and use Penn Lines' assets. Id. at ¶¶ 20, 25; Plaintiffs' Rule 56.1 Statement of Undisputed Facts ("Pl.Stmnt.") at ¶ 3. Norfolk was receiving rents on the property, pursuant to the 1985 lease agreement with the Town of Delaware, on the date of the accident. Def. Stmnt. at ¶ 25. There is no new or separate lease between the Town of Delaware and Norfolk. Id. at ¶ 31.

Defendant now moves for summary judgment on the ground that Conrail did not own, operate, manage, maintain, repair and/or control the premises in question, and thus owed no duty to the Plaintiff Marion Beck on September 8, 2001, the date of her accident. See Def. Mem. at 1.

II. STANDARD FOR SUMMARY JUDGMENT

A party is entitled to summary judgment when there is no "genuine issue of material fact" and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addressing a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 553 (1986). Whether any disputed issue of fact exists is for the Court to determine. Balderman v. United States Veterans Admin., 870 F.2d 57, 60 (2d Cir.1989). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986). Once such a showing has been made, the non-moving party must present "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The party opposing summary judgment "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

Because the district court must determine "whether there is a need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved ... in favor of either party," the non-moving party, in order to defeat the motion, must produce "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.... If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2510-11 (citations omitted). While the Court must view the record "in the light most favorable to the non-moving party," Leberman v. John Blair & Co., 880 F.2d 1555, 1559 (2d Cir.1989) (citations omitted), and "resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought," Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975) (citations omitted), the non-moving party nevertheless "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted) (emphasis added).

Plaintiffs assert two bases for denial of Defendant's motion for summary judgment. Neither is sufficient to withstand summary judgment.

III. DISCUSSION

A. Defendant's Duty of Care

1. Direct Duty to Plaintiffs

Plaintiffs contend that Conrail was negligent in failing to maintain and repair the sidewalk/curb area they allegedly owned, on which the Plaintiff had her accident. Cplt. at ¶ 13. In order to maintain an action for negligence, the Plaintiffs must establish that Defendant owed a duty to Plaintiff as, "[i]n the absence of duty, there is no breach and without a breach there is no liability." Dugue v. 1818 Newkirk Mgmt. Corp., 301 A.D.2d 561, 562, 756 N.Y.S.2d 51, 52 (2d. Dept.2003) (quoting Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 395, 358 N.E.2d 1019, 1020 (1976)).

It is well established under New York law that "liability for a dangerous condition on property is predicated upon ownership, occupancy, control or a special use of the property;" the determinative issue being one of possession and control. Rodriguez v. Am. Rest. Ventures, Inc., 923 F.Supp. 598, 601 (S.D.N.Y.1996) (emphasis added) (quoting Millman v. Citibank, N.A., 216 A.D.2d 278, 627 N.Y.S.2d 451, 452 (2d Dep't 1995)); Abdul-Azim v. RDC Commercial Ctr., Inc., 210 A.D.2d 191, 620 N.Y.S.2d 70, 71 (2d Dep't 1994). Where none of these factors are present, "a party cannot be held liable for injuries caused by a dangerous or defective condition of the property." Minott v. City of New York, 230 A.D.2d 719, 720, 645 N.Y.S.2d 879, 880 (2d Dep't 1996) (quoting Turrisi v. Ponderosa, Inc., 179 A.D.2d 956, 957, 578 N.Y.S.2d 724, 726 (3rd Dep't 1992)).

It is equally well established that, generally, liability for a dangerous condition terminates "upon transfer of possession and control" of the property to another entity. Plasynski v. Econ. Opportunity Council of Suffolk, Inc., 239 A.D.2d 478, 479, 658 N.Y.S.2d 65 (2d Dep't 1997); see also James v. Stark, 183 A.D.2d 873, 584 N.Y.S.2d 137 (2d Dep't 1992) (noting that liability for condition ceased upon conveyance of the property in question).

The Plasynski case cited by Defendant in its Memorandum of Law mirrors the facts at hand. The defendant in that case transferred title and ownership of the property in question to another entity, Long Island Day Care Services, Inc., almost two and one-half years prior to the plaintiff's accident. Plasynski, 239 A.D.2d at 478, 658 N.Y.S.2d 65. As such, the court held that as of the date of the transfer, Long Island Day Care Services, Inc. was the "vendee in possession, and for all practical purposes was the owner of the property with all of the rights of an owner subject only to the terms of the agreement." Id. Here, it is uncontested that Conrail transferred its entire interest in the property, by deed, to Penn Lines on June 1, 1999, more than two years prior to the Plaintiff's accident. Def. Stmnt. at ¶ 21. Not only do Plaintiffs admit to this fact submitted by Defendant in their 56.1 Statement, but they also acknowledge that "[they] mistakenly brought suit against defendant, [Conrail] as owner." Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl.Mem.") at 6. Accordingly, it is apparent that Conrail owed no direct duty to Plaintiff, or anyone else, with respect to the property in question.

2. Vicarious Liability

Realizing that they have sued the wrong Defendant, Plaintiffs contend that Conrail exercised...