Corral et al v. The Outer Marker LLC et al
Filing
172
ORDER granting 120 Motion to Dismiss; granting 122 Motion for Summary Judgment; denying as moot 145 Motion in Limine; denying as moot 146 Motion in Limine; denying as moot 148 Motion in Limine; denying as moot 153 Motion in Limine; denying as moot 154 Motion in Limine. As the defendants' motions for summary judgment are granted, the derivative fourth cause of action is also dismissed as to The Outer Marker, Park Line and the County. For the foregoing reasons, defendants' motions for summary judgment are granted in their entirety. The parties' outstanding motions in limine are denied as moot. SO ORDERED. Ordered by Judge Sandra J. Feuerstein on 9/20/2011. (Brienza, Lauren)
f)jF
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------)(
RODOLFO URENA CORRAL and
MARIA URENA,
Plaintiffs,
-against-
ORDER
10-CV-1162 (SJF) (ARL)
THE OUTER MARKER
GLOBAL STEEL, INC.,
THE COUNTY OF SUFFOLK,
JAMIN JACKSON d/b/a JACKSON STEEL,
CESAR PINEDA d/b/a HORIZON ERECTORS, and
PARK LINE ASPHALT MAINTENANCE INC.,
Defendants.
FILEr)
INCLFPI~''<~·- -U S DISTRI-~, , . _u . 'CI=:
CT COG;·{; I:::.D.N.Y
*
SEP 2 u 2011
*
LONG ISLAND OFFICE
------------------------------------------------------------------)(
FEUERSTEIN, J.
On March 3, 2010, plaintiffs Rodolfo Urena Corral ("Corral") and Maria Urena (together,
"plaintiffs") commenced this action for damages arising from Corral's alleged injury at a
construction site and Maria Urena's loss of consortium as a result of that injury. Before the
Court are motions for summary judgment filed by defendants The Outer Marker, Park Line
Asphalt Maintenance, Inc. ("Park Line"), and Suffolk County (the "County") (together,
"defendants"). For the reasons that follow, defendants' motions are granted.
1
I.
Background.
A.
Factual Background
The complaint alleges that on November 28, 2009, Corral was employed as a construction
worker on a large metal frame airplane hangar at the Francis S. Grabeski Airport in Westhampton
Beach, New York ("the Airport"), and was severely injured while using a defective "hoist or
lift." Second Amended Complaint ("Compl.") ~~ 1, 21, 27, 31, 33, 37.
Defendant Suffolk County owned the land on which the airplane hangars were being
constructed. (Plaintiffs' Counter-Statement of Material Facts ["Pl. 56.1 Stmt."], ~ 2). Defendant
The Outer Marker leased the land from the County, including the "right to construct and operate
the airplane hangars and appurtenant equipment and taxi ways." ld. at~ 5. The Outer Marker
was created for the purpose of leasing the land and constructing the airplane hangars, and is
owned by Richard Mailand and Robert Mailand. (The Outer Marker and Park Line's Statement
ofUndisputed Facts ["Def. 56.1 Stmt."], ~ 11).
Park Line, which is also owned by Richard Mailand and Robert Mailand, was the general
contractor for the project. Def. 56.1 Stmt., ~ 12. Richard Mailand hired Jackson Steel- which is
owned by Jamin Jackson, 1 Def. 56.1 Stmt., ~ 14- to erect the two airplane hangars, Pl. 56.1
Stmt., ~ 11, but "Jamin Jackson and/or Jackson Steel subcontracted the steel erection project for
The Outer Marker to Cesar Pineda and/or Horizon Erectors." Def. 56.1 Stmt., ~ 19. Cesar
Pineda, who did business as "Horizon Erectors," Pl. 56.1 Stmt., ~ 8, hired five individuals to
'Based upon a Bankruptcy Court proceeding involving Jamin Jackson, the trial and
pending summary judgment motion as to Jamin Jackson were stayed. See Docket No. 111.
2
actually build the hangars: Corral, Elmer Pineda, Marcelo Pineda, Artemio Mendoza, and Israel
Hernandez. Pl. 56.1 Stmt., ~ 10. Each of the five workers claimed to be the sole proprietor of an
individual business entity. Pl. 56.1 Stmt., ~ 8.
Plaintiffs premise liability upon the moving defendants based upon allegations that the
Airport was "owned and operated" by Suffolk County, Compl. at~ 21, leased to The Outer
Marker, id.
at~
22, and Park Line was a contractor for the project, id.
at~
28.
In order to assist in the construction of the hangars, Jamin Jackson ordered "mechanized
equipment" for use by the workers, which included a JLG boom elevated work platform (the
"lift"). Pl. 56.1 Stmt., ~ 14; Def. 56.1 Stmt. 56.1, ~ 27. According to plaintiffs, the lift "is a selfpropelled four-wheel drive basket lift equipped with a 60 foot extending boom." Plaintiffs' Br.
at 10. A "steel rail-enclosed work platform, also known as a basket or turret" is attached to the
end of the boom. Id. The basket's "control panel" includes two "joysticks." Id. The left
joystick, which moves the basket up and down, contains a "lockout safety mechanism" designed
to prevent the basket's movement "unless a spring-loaded lockout ring on the joystick is first
lifted up." Id. A "floor pedal" must also be depressed in order for any of the controls to
function. Id.
Plaintiffs claim that the lockout safety mechanism on the left joystick was broken at the
time ofCorral's accident, and that Corral "was injured because the joystick was activated
inadvertently while the foot pedal was pressed." Id. at 15. According to plaintiffs, Corral was
pinned between a horizontal railing above the machine's controls and the horizontal girt in the
hangar. See Plaintiffs Br. at 12.
According to the declaration of Israel Hernandez, a worker at the site, the left joystick
3
was "cracked from the beginning when it arrived at the airport," and "had a circular, wide and
deep hole in the cap." Plaintiffs' Ex. 6 at~ 10. Similarly, Elmer Pineda, another worker,
testified at his deposition that there was a hole in the left joystick, which "ha[d] always been
there." Plaintiffs' Ex. 5, 41:12-13. Mr. Hernandez states that the control joysticks had
"problems," Plaintiffs' Ex. at~ 8, that "the safety on the left joystick was not in good working
order," id. at~ 11, and that lifting the safety "did not prevent the basket from moving," id. Elmer
Pineda testified that he did not need to lift the lockout ring when he freed Corral from the basket
at the time ofthe accident. Plaintiffs' Ex. 5, 41:18-42:14.
Plaintiffs' expert, Russ Rasnic, submitted a "Preliminary Report" dated May 14,2011, in
which he opined that the accident was caused by "the failure to properly maintain safety devices
designed to prevent the BOOM ELEVATION/TURRET ROT A TION controls from being
inadvertently actuated." Plaintiffs' Ex. lOA, at 3. In support ofthat conclusion, Mr. Rasnic cited
his "inspection" of the machine on April 28, 2011, well over a year after the accident occurred.
Mr. Rasnic stated that, at the time he tested the machine, the "lockout ring was not functioning
on the BOOM ELEVATION/TURRET ROTATION controller." Id. at 14. 2
On August 26, 2011, defendants filed their motions for summary judgment?
2
After the close of discovery, Mr. Rasnic subsequently submitted a "Supplemental
Report," dated July 6, 2011. Because this report was untimely, the Court previously ruled that
the report and any testimony arising from it would be disregarded. Docket Entry No. 144.
3
The procedural history ofthis case is discussed in the Court's order dated September 1,
2011 [Docket Entry No. 144 at pp. 2-3].
4
II.
Discussion.
A.
Summary Judgment Standard
Summary judgment should not be granted unless "the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law." Wilson v.
Northwestern Mut. Ins. Co., 625 F.3d 54,60 (2d Cir. 2010) (quoting Fed. R. Civ. P. 56(c)(2)).
"In ruling on a summary judgment motion, the district court must resolve all ambiguities, and
credit all factual inferences that could rationally be drawn, in favor of the party opposing
summary judgment and determine whether there is a genuine dispute as to a material fact, raising
an issue for trial." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,202 (2d Cir. 2007)
(internal quotations and citations omitted). "A fact is material when it might affect the outcome
of the suit under governing law." Id. An issue of fact is genuine only 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, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party
bears the initial burden of establishing the absence of any genuine issue of material fact, after
which the burden shifts to the nonmoving party to establish the existence of a factual question
that must be resolved at trial. See Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d
Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317,323, 106 S.Ct. 2548,91 L.Ed.2d 265
(1986)).
"In order to defeat a motion for summary judgment supported by proof of facts that would
5
entitle the movant to judgment as a matter of law, the nonmoving party is required under Rule
56(e) to set forth specific facts showing that there is a genuine issue of material fact to be tried.*
* *. Ifthe nonmoving party does not so respond, summary judgment will be entered against
him." Ying Jing Gan v. City ofNew York, 996 F.2d 522, 532 (2d Cir. 1993) (citations omitted).
The nonmoving party "may not rely simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible * * *, or 'upon the mere allegations or denials of
the [nonmoving] party's pleading,' Fed.R.Civ.P. 56(e)." Id. (citations omitted).
B.
New York State Labor Law§ 240(1)
Plaintiffs' first cause of action alleges that defendants violated New York State Labor
Law§ 240(1) by failing "to construct, place, and operate proper safety equipment" at the Airport
work site. Compl.,
~~
34-42.
Section 240(1) ofthe New York Labor Law "imposes absolute liability on owners or
contractors or their agents for injuries proximately caused by a failure to provide safety devices
necessary for protection to workers subject to the risks inherent in elevated work sites." Agric.
Ins. Co .. Inc. v. Ace Hardware Corp., 214 F.Supp.2d 413, 417 (S.D.N.Y. 2002) (internal
quotation marks omitted). The provision is intended to protect workers from "elevation-related
hazards," Henry v. Eleventh Ave., L.P., 87 A.D.3d 523, 928 N.Y.S.2d 72, 73 (2d Dep't 2011),
and is designed to "shield the injured worker from harm directly flowing from the application of
the force of gravity to an object or person," id. (quoting Ross v. Curtis-Palmer Hydro-Elec. Co.,
81 N.Y.2d 494, 501, 601 N.Y.S.2d 49,618 N.E.2d 82 (1993) (emphasis in original)). The New
6
York Court of Appeals has held that the protections of section 240( 1) apply "only to a narrow
class of special hazards." Nieves v. Five Boro Air Conditioning & Refrigeration Corp., 93
N.Y.2d 914,915-16,690 N.Y.S.2d 852,712 N.E.2d 1219 (1999). "The core objective ofthe
statute in requiring protective devices for those working at heights is to allow them to complete
their work safely and prevent them from falling." Id. at 916, 690 N.Y.S.2d 852, 712 N.E.2d
1219.
The record does not suggest that Corral's accident was caused by one of the "special
hazards" contemplated by the statute. Corral did not fall from the aerial lift. At the time of the
accident, Mr. Corral's "head and shoulders were caught between the horizontal railing above the
controls and the horizontal 'girt' above him." Plaintiff's Br. at 12. Indeed, when Elmer Pineda
reached him, Mr. Corral's foot was still touching the pedal, and his "chest was slumped over the
controls." Id. Because Mr. Corral's accident was not the result of an "elevation-related hazard,"
as the term is used by the statute, section 240(1) does not apply to this case, and summary
judgment as to plaintiffs' first cause of action is granted. See, e.g., Mancuso v. M.T.A. New
York City Transit, 80 A.D.3d 577, 578, 914 N.Y.S.2d 283 (2d Dep't 2011) (dismissal of§ 240(1)
claim appropriate because plaintiff did not fall from aerial lift); Tsatsakos v. Citicorp, 295
A.D.2d 500, 501, 744 N.Y.S.2d 475 (2d Dep't 2002); White v. Sperry Supply and Warehouse,
Inc., 225 A.D.2d 130, 133, 649 N.Y.S.2d 236 (3d Dep't 1996) (statute requires "connection
between [an] accident and the force of gravity").
7
C.
New York State Labor Law§ 241(6).
Plaintiffs' second cause of action alleges that defendants violated section 241 (6) of the
New York State Labor Law. Compl. ~~ 43-51. Section 241(6) "requires owners and contractors
to provide reasonable and adequate protection and safety for workers and to comply with the
specific safety rules and regulations promulgated by the Commissioner of the Department of
Labor." Ross, 81 N.Y.2d at 501-02, 601 N.Y.S.2d 49, 618 N.E.2d 82. This duty is
nondelegable. Comes v. N.Y. State Elec. and Gas Corp., 82 N.Y.2d 876, 878, 609 N.Y.S.2d 168,
631 N.E.2d 110 (1993).
However, "there is no direct claim for a violation of§ 241(6) itself'; plaintiffs must
prove there was "a violation of one of [the statute's] implementing regulations." Lamela v. City
ofNew York, 560 F.Supp.2d 214,226 (E.D.N.Y. 2008). The implementing regulation alleged to
have been breached must be a "specific, positive command," not a mere "reiteration of commonlaw standards." Ross, 81 N.Y.2d at 502,601 N.Y.S.2d 49, 618 N.E.2d 82. A regulation that
does not mandate compliance with "concrete specifications" does not give rise to this
nondelegable duty. Id. at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82.
In their opposition to the instant motion, plaintiffs rely upon two (2) such implementing
regulations: 12 N.Y.C.R.R. § 23-9.2(a) and 12 N.Y.C.R.R. § 23-9.6(a). 4
4
Although the Second Amended Complaint alleges violations of a number oflndustrial
Code provisions, plaintiffs refer to only §§ 23-9.2(a) and 9.6(a) in their opposition. The Court
considers those remaining claims to have been abandoned. Anti-Monopoly, Inc. v. Hasbro, Inc.,
958 F. Supp. 895,907 n. 11 (S.D.N.Y. 1997) ("[U]nder New York state law, the failure to
provide argument on a point at issue constitutes abandonment of the issue.").
8
1.
12 N.Y.C.R.R. § 23-9.2(a).
12 N.Y.C.R.R. § 23-9.2(a) states as follows:
"(a) Maintenance. All power-operated equipment shall be maintained in good repair and
in proper operating condition at all times. Sufficient inspections of adequate frequency shall be
made of such equipment to insure such maintenance. Upon discovery, any structural defect or
unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The
servicing and repair of such equipment shall be performed by or under the supervision of
designated persons. Any servicing or repairing of such equipment shall be performed only while
such equipment is at rest."
The New York Court of Appeals has found that this regulation is sufficiently specific, and
therefore enforceable, to the extent that it places an affirmative duty on employers to correct any
structural defect or unsafe condition in equipment or machinery upon "discovery." Misicki v.
Caradonna, 12 N.Y.3d 511, 521, 882 N.Y.S.2d 375,909 N.E.2d 1213 (2009). Thus, "an
employee who claims to have suffered injuries proximately caused by a previously identified and
unremedied structural defect or unsafe condition ... has stated a cause of action under Labor
Law§ 241(6) based on an alleged violation of 12 N.Y.C.R.R. 23-9.2(a)." Id.
However, the regulation requires an employer to have received actual notice of a defect or
unsafe condition in order to be held liable. Id. Plaintiffs have failed to raise a triable issue of
fact as to whether Corral's employer had actual notice of any alleged defect in the lockout safety
mechanism.
Plaintiffs fail to identify any evidence that Mr. Corral's employer, Cesar Pineda (who did
9
business as "Horizon Erectors"), Pl. 56.1 Stmt., ~ 8, received actual notice of any defect in the
aerial lift. Plaintiffs note that Cesar Pineda "was never present at the worksite prior to the date of
the accident," but argue that another member of the work crew, Marcelo Pineda, essentially acted
as Cesar Pineda. Plaintiffs' Br. at 9, 20. Although The Outer Marker and Park Line admit that
Marcelo Pineda was "considered to be the supervisor" of the crew, Def. 56.1 Reply Stmt., p. 33,
there is no admissible evidence that Marcelo Pineda had actual notice of a defect in the lockout
safety mechanism.
In support of their claim that "Marcelo Pineda knew ... that the safety interlock did not
function," Pl. 56.1 Stmt.
~57,
plaintiffs rely on Mr. Hernandez's hearsay declarations, in which
he states that "I remember specifically that Marcelo told me that the two joysticks and their
safeties were not in good working order and therefore I should take more precaution when I
operated the machine," Plaintiffs' Ex. 6, ~ 12, and "Marcelo replied that he noticed the control
had a defect," Plaintiffs'
Ex.~
9. See Marvel Worldwide, Inc. v. Kirby, 777 F.Supp.2d 720, 730
(S.D.N.Y. 2011) ("In opposing a motion for summary judgment, the non-movant may not rely on
inadmissible evidence, such as hearsay, to create a disputed issue of fact."). Although plaintiffs
also cite to the deposition testimony of Elmer Pineda, Plaintiffs' Ex. 5, Elmer Pineda's testimony
actually undermines the contention that Marcelo Pineda was aware of the condition. Plaintiffs'
Ex. 5, 70:13-20,75:7 (noting that he never mentioned the condition of the joystick to Marcelo
Pineda). Plaintiffs contend that Marcelo Pineda used the lift in the days leading up to the
accident, Pl. Br. 20, but this alone - even if supported by the record - is insufficient to create a
triable issue of fact as to whether Marcelo Pineda was on notice of any defect or malfunction in
10
the machine. 5
2.
12 N.Y.C.R.R. § 23-9.6(a).
Plaintiffs also rely on 12 N.Y.C.R.R. § 23-9.6(a), which requires an "operator" to conduct
a "daily inspection" of an "aerial basket," which should include, inter alia, a review of the
"[b ]oom and basket for cracks and abrasions" and a test of the "basket controls ... to make sure
that they are in proper working order." If a defect or malfunction is found during an inspection,
Section 23-9.6(a) requires that defect or malfunction to be "corrected before [the] aerial basket is
placed in operation."6 Plaintiffs argue that "[n]o one ever performed the inspections that were
required" by the regulation, that there "are no records of daily inspections performed," and that
"[n]one of the workers was ever instructed to inspect the lift each day." Plaintiffs' Br. at 13.
The plain language of the regulation, however, requires the operator of the machine to
conduct the daily inspection. Mr. Corral testified that he was the only person who used the lift
on the day ofhis accident, see Plaintiffs' Ex. 21,67:19-21, and thus it was his duty to inspect the
5
Even if the hole in the joystick was obvious, and even ifthere was admissible evidence
that Marcelo Pineda seen the joystick before Corral's accident, it is not clear that the hole itself
would have signaled any malfunction with the machine's lockout safety mechanism.
6
The Court finds that section 23-9.6(a) mandates "a distinct standard of conduct," and
does not simply recite "common-law safety principles." Misicki, 12 N.Y.3d at 521, 882
N.Y.S.2d 375, 909 N.E.2d 1213. For that reason, the regulation is "specific" enough to support
liability under Labor Law§ 241(6). See Scott v. T. Moriarty & Son, Inc., 2010 N.Y. Slip. Op.
30966U, 2010 N.Y. Misc. LEXIS 1873 (Sup. Ct. N.Y. Cnty. Apr. 19, 2010).
11
equipment. 7 Defendants cannot be held liable for Corral's failure to comply with the regulation.
Compare Scott v. T. Moriarty & Son, Inc., 2010 N.Y. Slip. Op. 30966U, 2010 N.Y. Misc. LEXIS
1873 (Sup. Ct. N.Y. Cnty. Apr. 19, 2010) (noting that plaintiffused machine along with coworker, and thus was not sole "operator" of machine).
D.
New York State Labor Law § 200 and Common Law Negligence.
Plaintiffs also allege that defendants' actions were negligent and in violation ofNew
York State Labor Law§ 200. Section 200 "is a codification ofthe common law duty on the part
oflandowners and general contractors to maintain a safe workplace."
Lamel~
560 F.Supp.2d at
221. "As a result, it is appropriate to analyze[] common law and§ 200 claims simultaneously."
ld.; see also Kaczmarek v. Bethlehem Steel Corp., 884 F. Supp. 768, 774 (W.D.N.Y. 1995).
As a threshold matter, plaintiffs must establish that each defendant had "[b]oth control
and notice- either actual or constructive." Id. (citing Comes v. New York State Elec. and Gas
~.
82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110 (1993)).
An "implicit precondition" to liability under section 200 is "authority to control the
activity bringing about the injury." Comes, 82 N.Y.2d at 877,609 N.Y.S.2d 168,631 N.E.2d
110 (quoting Russin v. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127, 429 N.E.2d 805
7
Plaintiffs claim that Corral "had been working in the machine with Elmer" on the day of
his accident, Pl. Br. at 11, but that statement is contradicted by the testimony ofboth Corral and
Elmer Pineda. Plaintiffs' Ex. 21, 67:19-21 ("Q. Was anybody with you in the basket on the day
ofyour accident, before it happened? A. No."); see also Plaintiffs' Ex. 5, 14:23-25. It is also
inconsistent with plaintiffs' own 56.1 statement. See Pl. 56.1 ,-r,-r 73, 75 (on day of accident,
Corral was operating the work platform, while Elmer Pineda was bringing steel girts to him).
12
( 1981)). "Where the alleged defect or dangerous condition arises from the contractor's methods
and the owner exercises no supervisory control over the operation, no liability attaches to the
owner under the common law or under Labor Law§ 200." Id.
"An owner or general contractor does not supervise or control the performance of the
work for the purposes of§ 200 merely by presenting ideas and suggestions, making observations
and inquiries, and inspecting the work." Lamelili 560 F.Supp.2d at 221 (quoting Poulin v. E.I.
DuPont DeNemours and Co., 883 F. Supp. 894, 899 (W.D.N.Y. 1994)). "Absent any evidence
that [the accused party] gave anything more than general instructions as to what needed to be
done, as opposed to how to do it, [they] cannot be held liable under § 200 for common law
negligence." Id. (quoting O'Sullivan v. IDI Const. Co., 28 A.D.3d 225, 226, 813 N.Y.S.2d 373
(1st Dep't 2006), affd, 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159 (2006)).
There is no evidence to support an inference that Suffolk County exercised any control
over the construction operation. The County was merely the owner of the property, which it
leased to The Outer Marker. Pl. 56.1 Stmt., ~ 2.
Plaintiffs allege that Richard Mailand was "present at the construction site almost every
day," and that he "held one safety meeting with the hangar construction crew." Pl. 56.1 Stmt., ~~
50, 52. But Mailand's "presence at the worksite" is insufficient; plaintiffs must show a "specific
exercise of control over the particular condition that gave rise to [the] incident." Lamelili 560
F.Supp.2d at 221. The fact that Mailand may have given the crew members "general
instructions" is also insufficient. Id. According to Corral, it was Marcelo Pineda who gave him
instruction on how to perform the job, not Mailand. Plaintiffs' Ex. 21, 38:9-38:11. Similarly,
Elmer Pineda testified that he never observed Mailand giving any instruction to the crew
13
members. Plaintiffs' Ex. 5, 58:19-59:8; see also Plaintiffs' Ex. 1, 50:7-22. I therefore find that
there is no genuine issue of fact as to whether The Outer Marker or Park Line exercised the sort
of control over Corral's work that could support a finding of liability: summary judgment as to
this claim is appropriate, and analysis ofthe issue of notice is unnecessary. See Wojcik v. 42nd
Street Development Project, 386 F.Supp.2d 442, 458 n. 16 (S.D.N.Y. 2005).
Based upon the foregoing, the Court need not reach the merits of the negligence claim as
to the moving defendants, and summary judgment as to the third cause of action is granted.
E.
Loss of Consortium.
The complaint alleges that, as a result of the accident, Corral's wife, Maria Urena, "was
deprived of the society, support, services and consortium of her husband; was required to travel
back and forth to New York; and has been otherwise damage [sic]." Compl.
~58.
Under New
York law, a claim for loss of consortium "is a derivative action and, as such, its viability is
dependent on the viability of a primary cause of action .... " Jones v. United States, 408
F.Supp.2d 107, 126-27 (E.D.N.Y. 2006) (quoting Panczykowski v. Laborers Int'l Union ofN.
Am., No. 97-CV-036A, 2000 WL 387602, at *14 (W.D.N.Y. Mar. 31, 2000)). As the
defendants' motions for summary judgment are granted, the derivative fourth cause of action is
also dismissed as to The Outer Marker, Park Line, and the County.
14
III.
Conclusion
For the foregoing reasons, defendants' motions for summary judgment are granted in their
entirety. The parties' outstanding motions in limine [Docket Nos. 145, 146, 148, 153, 154] are
denied as moot.
SO ORDERED.
fJ
(J
/S/
/
{I
Sandra J. Feuerstein
United States District Judge
Dated:
September 20, 2011
Central Islip, NY
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?