Moe v. U.S.

• Decision Date: 05 November 2009
• Docket Number: No. 06-CV-577A.,06-CV-577A.
• Citation: 668 F.Supp.2d 497
• Parties: Karen M. MOE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of New York

668 F.Supp.2d 497

Karen M. MOE, Plaintiff, v. UNITED STATES of America, Defendant.

No. 06-CV-577A.

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

November 5, 2009.

COPYRIGHT MATERIAL OMITTED

Paul William Beltz, P.C., Stephen R. Foley, of Counsel, Buffalo, NY, for Plaintiff.

Kathleen M. Mehltretter, Acting United States Attorney, Mary K. Roach, Assistant United States Attorney, of Counsel, Buffalo, NY, for Defendant.

ORDER

RICHARD J. ARCARA, Chief Judge.

The above-referenced case was referred to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1)(B). On September 14, 2009, Magistrate Judge Foschio filed a Report and Recommendation, recommending that plaintiffs motion seeking partial summary judgment on the issue of liability be granted.

The Court has carefully reviewed the Report and Recommendation, the record in this case, and the pleadings and materials submitted by the parties, and no objections having been timely filed, it is hereby

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, plaintiffs motion seeking partial summary judgment on the issue of liability is granted.

The parties shall appear for a meeting to set a trial date as to damages on November 12, 2009 at 9:00 a.m.

SO ORDERED.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

This action was referred to the undersigned on November 24, 2006, by Honorable Richard J. Arcara, for pretrial matters, including report and recommendation of dispositive motions. The matter is presently before the court on Plaintiffs motion for partial summary judgment (Doc. No. 14), filed April 30, 2008.

BACKGROUND

On August 25, 2006, Plaintiff Karen M. Moe ("Plaintiff" or "Moe"), commenced this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, seeking to recover monetary damages for injuries sustained August 28, 2003, in a motor vehicle collision between Plaintiff and Robin A. Truby ("Truby"), an employee of the United States Postal Service. On November 21, 2006, Defendant United States of America ("Defendant") filed its answer (Doc. No. 3).

On April 30, 2008, Plaintiff filed a motion seeking partial summary judgment on the liability issue (Doc. No. 14) ("Plaintiffs motion"). The motion is supported by the attached Declaration of Stephen R. Foley, Esq. ("Foley Declaration"), with Exhibits A through G ("Plaintiffs Exh(s). ___"), Rule 56 Statement ("Plaintiffs Rule 56 Statement"), and the Memorandum of Law in Support of Summary Judgment Motion ("Plaintiff's Memorandum"). In opposition to summary judgment, Defendant filed on May 29, 2008, September 14, 2009, Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment on the Issue of Liability (Doc. No. 16) ("Defendant's Response"), Defendant's Response to Plaintiffs Rule 56 Statement and Statement Pursuant to Local Rules 56.1(b) and (c) (Doc. No. 17) ("Defendant's Rule 56 Statement"), and Defendant's Appendix to Defendant's Response (Doc. No. 18), attached to which are Defendant's exhibits A through C ("Defendant's Exh(s). ___"). In further support of partial summary judgment, Plaintiff filed on June 13, 2008, the Reply Memorandum of Law in Further Support of Plaintiffs Summary Judgment Motion (Doc. No. 19) ("Plaintiffs Reply"), and the attached Declaration of Stephen R. Foley ("Foley Reply Declaration"), with attached exhibits A and B ("Plaintiffs Reply Exh(s). ___"). Oral argument was deemed unnecessary.

Based on the following, Plaintiffs motion should be GRANTED.

FACTS

At noon on August 28, 2003, Plaintiff was driving a motorcycle in the Town of Amherst, New York, on Tonawanda Creek Road, a two-lane road with each lane moving in opposite directions. At the same time, Truby was, in the course of her employment as a postal carrier with the United States Postal Service, driving her personal vehicle, a four-door Buick sedan ("Truby's vehicle"), while delivering mail along a rural postal route on Tonawanda Creek Road. Because Truby's vehicle was a left-side drive vehicle, Truby sat in the front passenger seat of her vehicle, using her left foot to operate the gas and brake pedals, steering the vehicle with her left arm, and driving on the shoulder of the road close enough to the road's edge to allow Truby to use her right arm to deliver mail through the vehicle's front passengerside window into roadside mailboxes.

In the midst of delivering mail along her rural postal route, Truby realized she had made a "mis-delivery," i.e., erred in delivering mail, at the previous mailbox on Tonawanda Creek Road. Because correcting the mis-delivery required Truby to return to the previous mailbox, Truby turned the vehicle's steering wheel to the left, moving from the shoulder of the road into the roadway of Tonawanda Creek Road and colliding with Plaintiff's passing motorcycle.¹ The impact of the collision threw Plaintiff from the motorcycle and into a patch of grass on the side of Tonawanda Creek Road at its intersection with Orbit Road. Plaintiff was taken by ambulance from the scene of the collision to Erie County Medical Center ("ECMC") in Buffalo, New York.

The Police Accident Report, prepared in connection with the collision describes the collision as occurring when Truby's vehicle, which was on the shoulder of Tonawanda Creek Road, "failed to yield right of way" to the motorcycle driven by Plaintiff "upon re-entering roadway causing" the motorcycle to hit Truby's vehicle. A traffic citation issued at the scene of the accident charged Truby with violating New York Vehicle and Traffic Law ("N.Y. Veh. & Traf. Law") § 1143 (failure of vehicle entering roadway to yield).

As a result of the collision, Plaintiff sustained injuries to her right shoulder, right clavicle, and right foot. In particular, Plaintiff sustained a non-displaced midright clavicle fracture, an intra-articular fracture of the distal end of the proximal phalanx of the first digit with angulation at the fracture site, a fracture of the second distal metatarsal shaft, and a right rotator cuff tear. Plaintiff underwent surgical procedures for the rotator cuff tear and placement of two K-pins for the first proximal phalanx fracture.

On February 23, 2004, Truby pleaded guilty in Amherst Town Court to violations of N.Y. Veh. & Traf. Law § 1110(a) (failure to obey traffic-control devices), and § 1201(a) (parking violation).

DISCUSSION

Defendant does not dispute that according to the FTCA, "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674. Complaint ¶ 1; Answer ¶ 1 Nor do the parties dispute that Plaintiff has complied with the FTCA's requirement that prior to commencing legal action, the tort claim must be presented to the appropriate federal agency which either denied the claim or after more than six months, failed to make a final disposition of the claim. 28 U.S.C. § 2675(a). Complaint ¶¶ 3-4; Answer ¶ 3-4.

Plaintiff seeks summary judgment on the issue of Defendant's liability for the actions of U.S. Postal Service employee Truby in connection with the August 28, 2003 collision in which Plaintiff was injured. Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Once a party moving for summary judgment has made a properly supported showing of the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995).

Vague assertions supported only by self-serving statements in the nonmoving party's affidavit are insufficient to defeat a properly supported summary judgment motion. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (non-movant cannot "escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts"); Reisner v. General Motors Corp., 671 F.2d 91, 93 (2d Cir.1982) (disregarding non-movant's self-serving affirmations contradicting prior assertions in depositions, interrogatories and affidavits). "The non-moving party may not rely on conclusory assertions or unsubstantiated speculation [to defeat summary judgment]." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Rather, "the non-movant must produce specific facts indicating that a genuine factual issue exists." Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998) (underlining added). The ultimate inquiry on a summary judgment motion is whether any reasonable jury could find the plaintiffs evidence meets the requisite burden of proof. Amnesty America v. Town of West Hartford, 361 F.3d 113, 122-23 (2d Cir.2004).

Pursuant to 28 U.S.C. § 1346(b), the instant FTCA action is to be decided "in accordance with the law of the place where the act or omission occurred," here, New York, Taylor v. U.S., 121 F.3d 86, 89 (2d Cir.1997) ("The liability of the federal government under the FTCA is...