Vrazel v. Long Island Rail Road

Filing 63

MEMORANDUM OF DECISION AND ORDER - For the reasons stated above, S&B's 60 motion for reconsideration is granted in part and denied in part. It is granted to the extent that its motion for summary judgment dismissing LIRR's contractual in demnification claim pursuant to Rule 56 is granted. It is denied to the extent that LIRR has presented sufficient facts for its contributory negligence claim to be presented to a jury. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 6/13/2017. (Coleman, Laurie)

FILED 
CLERK 

11:03 am, Jun 13, 2017

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHARLES VRAZEL,
Plaintiff,

MEMORANDUM OF
DECISION AND ORDER
14-cv-6209 (ADS)(ARL)

-againstLONG ISLAND RAILROAD COMPANY
Defendant.
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LONG ISLAND RAILROAD COMPANY,
Third Party Plaintiff,
-againstSCHEIDT & BACHMAN GMBH and SCHEIDT
& BACHMAN USA, INC.,
Third Party Defendants.
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APPEARANCES:
Law Offices of Michael D. Flynn
Attorneys for the Plaintiff
5 Penn Plaza
23rd Floor
New York, NY 10001
By:
Valerie J. Lauriello, Esq., Of Counsel

Karla R. Alston, Esq.
Corporate Counsel for the Defendant and Third Party Plaintiff
93–02 Sutphin Boulevard
Jamaica, NY 11435
Sedgewick LLP
Attorneys for the Third Party Defendants
225 Liberty Street
28th Floor
New York, NY 10281
By:
William J. Brennan, Esq., Of Counsel
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SPATT, District Judge:
This case arises from allegations by the Plaintiff Charles Vrazel (the “Plaintiff” or
“Vrazel”) that he suffered injuries because of the negligence of his employer, the Defendant Long
Island Rail Road (the “Defendant,” the “Third Party Plaintiff” or the “LIRR”), in violation of the
Federal Employers’ Liability Act, 45 U.S.C. § 51 (the “FELA”).

The Defendant LIRR

subsequently filed a third party complaint against the Third Party Defendants Scheidt & Bachman
GmbH and Scheidt & Bachman USA, Inc. (collectively, the “Third Party Defendants” or “S&B”),
alleging three causes of action sounding in contributory negligence, common law indemnification,
and contractual indemnification.
On November 8, 2016, the Court issued a memorandum of decision and order (the
“Decision”) granting in part, and denying in part a motion for summary judgment by S&B pursuant
to Federal Rule of Civil Procedure 56 (“FED. R. CIV. P.” or “Rule”) 56. Specifically, the Court
dismissed LIRR’s common law indemnification claim, but found that triable issues of fact existed
as to LIRR’s common law contribution and contractual indemnification claims.
Presently before the Court is a motion by S&B pursuant to Local Civil Rule 6.3 asking the
Court to reconsider its Decision, and for clarification on the Court’s ruling. For the following
reasons, S&B’s motion is granted in part, and denied in part.
I. DISCUSSION
A. The Relevant Legal Standard
Local Civil Rule 6.3 provides that:
Unless otherwise provided by the Court or by statute or rule (such as Fed. R. Civ.
P. 50, 52, and 59), a notice of motion for reconsideration or reargument of a court
order determining a motion shall be served within fourteen (14) days after the entry
of the Court’s determination of the original motion, or in the case of a court order
resulting in a judgment, within fourteen (14) days after the entry of the judgment.
There shall be served with the notice of motion a memorandum setting forth
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concisely the matters or controlling decisions which counsel believes the Court has
overlooked. The time periods for the service of answering and reply memoranda, if
any, shall be governed by Local Civil Rule 6.1(a) or (b), as in the case of the original
motion. No oral argument shall be heard unless the Court directs that the matter
shall be reargued orally. No affidavits shall be filed by any party unless directed by
the Court.
Id. “The standard for granting such a motion is strict, and reconsideration will generally be denied
unless the moving party can point to controlling decisions or data that the court overlooked—
matters, in other words, that might reasonably be expected to alter the conclusion reached by the
court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The decision to grant or
deny a motion for reconsideration is “committed to the sound discretion of the district court.”
Wilder v. News Corp., 2016 WL 5231819, at *3 (S.D.N.Y. Sept. 21, 2016) (internal quotation
marks omitted) (quoting Liberty Media Corp. v. Vivendi Universal, S.A., 861 F. Supp. 2d 262,
265 (S.D.N.Y. 2012)); see also Shrader, 70 F.3d at 257 (using an abuse of discretion standard to
judge a district court’s decision on a motion for reconsideration).
“[A] party may not advance new facts, issues[,] or arguments not previously presented to
the Court on a motion for reconsideration.” Steinberg v. Elkman, 2016 WL 1604764, at *1
(S.D.N.Y. Apr. 6, 2016) (internal quotation marks omitted) (quoting Nat'l Union Fire Ins. Co. of
Pittsburgh v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)). Nevertheless, reconsideration may be
granted because of “an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.” Luv n’ Care Ltd. v. Goldberg
Cohen, LLP, 2016 WL 6820745, at *1 (S.D.N.Y. Nov. 10, 2016) (internal quotation marks
omitted) (quoting Hollander v. Members of the Bd. of Regents, 524 F. App’x 727, 729 (2d Cir.
2013) (summary order)); accord Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992) (citations omitted).

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B. Application to the Facts
S&B argues for reconsideration on four grounds: 1) that the Court overlooked that LIRR
admitted that it lacked evidence of any misconduct by S&B that caused Vrazel’s injury; 2) the
Court relied on LIRR’s denials while overlooking LIRR’s lack of evidence supporting these
positions; 3) the Court overlooked that LIRR failed to make a sufficient showing as to essential
elements of their claims for contractual indemnification and contribution; and 4) the Court found
disputed issues of fact that were speculative and immaterial. In the alternative, S&B asks for
clarification as to whether LIRR will be constrained to a claim for partial contractual
indemnification at trial, as opposed to full indemnification. In opposition, LIRR contends that it
has made a sufficient showing on each of its claims to present them to a jury, and that the Court’s
analysis was correct.
1. As to LIRR’s Contributory Negligence Claim
As stated above, S&B’s arguments can be distilled down to two points: that the Court
overlooked that LIRR did not have any evidence of “misconduct” on S&B’s part, and that LIRR
therefore cannot make a sufficient showing on its contributory negligence claim. Here, the Court
finds no clear error, and S&B does not point to any change in the law or the availability of new
evidence.
LIRR admitted in its Statement of Material Facts (“SMF”) that it was not aware of any
misconduct that caused Vrazel’s injury. S&B argues that this fact alone should have resulted in
summary judgment in its favor on LIRR’s contribution claim.
The Court did not clearly address this contention in its Decision because it is unclear to the
Court how LIRR’s knowledge of any misconduct on S&B’s part relates to whether S&B breached
a duty of care to Vrazel.

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First, misconduct is an extremely vague term which implies wrongdoing. A breach of the
duty of care does not require misconduct from the individual who breaches their duty.
Second, as the decision made clear, there is a question of fact as to when Ticket Office
Machine (TOM) 1243 began malfunctioning. In order to prevail on a motion for summary
judgment, S&B would have to show that there was no question of fact that S&B breached its duty
to Vrazel. In this regard, the Decision listed several reasons, citing to admissible evidence, why a
question of fact remains as to whether S&B is liable for contribution.
S&B manufactures the TOMs, repairs them, and services them—including TOM 1243.
S&B serviced TOM 1243 at least two times in the six months before the incident. TOM 1243
allegedly shocked Vrazel, causing injuries. When S&B serviced the TOM after it shocked Vrazel,
it initially apparently misdiagnosed the problem. The only individuals who touched the electrical
components of TOM 1243 or its UPS are S&B workers. In effect, S&B asked the Court in its
motion for summary judgment to engage in speculation—because LIRR employees sometimes
kick or move the TOMs, S&B claims that is what happened in this situation. However, there is no
such evidence. The evidence shows that S&B workers touched and moved TOM 1243; that on at
least one occasion S&B workers misdiagnosed electrical issues; and that TOM 1243 shocked
Vrazel. Why it shocked Vrazel is unclear, and a trial should further illuminate that question.
The Court finds S&B’s arguments about LIRR’s 56.1 Statement similarly unavailing. The
56.1 Statements are not evidence; they are vehicles to help the Court. While parties may be bound
by admissions or denials in 56.1 Statements, those statements must in fact be supported by
admissible evidence. See Baity v. Kralik, 51 F. Supp. 3d 414, 421 (S.D.N.Y. 2014) (“the Court
has only relied upon uncontroverted paragraphs of Defendants’ Rule 56.1 Statement where the
record evidence duly supports Defendants’ contentions.”); Johnson v. IAC/Interactive Corp., 2 F.

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Supp. 3d 504, 508 (S.D.N.Y. 2014) (stating that the Court was “mindful that [t]he local rule does
not absolve the party seeking summary judgment of the burden of showing that it is entitled to
judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making
factual assertions that are otherwise unsupported in the record.” (internal citations and quotation
marks omitted)); Berdugo v. City of New York, No. 03 Civ. 7319, 2004 WL 1900357, at *1
(S.D.N.Y. Aug. 23, 2004) (where the plaintiff failed to follow requirements of Local Rule 56.1,
the defendants’ statements of facts were deemed to be admitted, but only to the extent that they
were supported by the record).
While LIRR failed in several instances to cite to the correct specific evidence in several of
its 56.1 denials, the Court conducted a careful review of the evidence. Similarly, the Court did not
overlook anything in the 56.1 Statements. “All materials and arguments submitted in support of
(or in opposition to) a motion are presumed to have been considered by the Court.” In re CRM
Holdings, Ltd. Sec. Litig., 2013 U.S. Dist. LEXIS 30116, *13, 2013 WL 787970 (S.D.N.Y. Mar.
4, 2013) (quoting Pereira v. Aetna Cas. & Surety Co. (In re Payroll Express Corp.), No. 95 CIV
4385, 1997 U.S. Dist. LEXIS 12971, 1997 WL 539777, at *1 (S.D.N.Y. Aug. 28, 1997)).
S&B’s motion merely “regurgitate[s] [] arguments that this Court previously
rejected. . . . [The] arguments have gained nothing in persuasiveness in the interim.” Charter Oak
Fire Ins. Co. ex rel. Milton Fabrics v. Nat’l Wholesale Liquidators, No. 99 CIV. 5756 (JSR), 2003
WL 22455321, at *1 (S.D.N.Y. Oct. 29, 2003) (citing Shamis v. Ambassador Factors Corp., 187
F.R.D. 148, 151 (S.D.N.Y. 1999).
Therefore, S&B’s motion for reconsideration of its motion for summary judgment with
regard to LIRR’s contributory negligence claim is denied.

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2. As to LIRR’s Contractual Indemnification Claim
S&B’s arguments on LIRR’s contractual indemnification claim track those listed above in
support of reconsideration of LIRR’s contributory negligence claim. However, here, the Court
finds that there was clear error in the Court’s Decision. Upon reconsideration, the Court grants
S&B’s motion for summary judgment on LIRR’s contractual indemnification claim.
A party opposing summary judgment must demonstrate that it can establish the elements
essential to the claim.

The Court accepted LIRR’s blanket denials, and apparently

mischaracterized LIRR’s fact witness. In this regard, the Court created an issue of fact where there
was none.
LIRR has not presented any admissible evidence demonstrating that S&B owes a
contractual duty to indemnify LIRR. The contract was not entered into evidence; there was no
testimony that LIRR was an indemnified party under the terms of the contract; the only testimony
regarding the contract was from LIRR’s Rule 30(b)(6) witness, Kevin Wylie, who said that he did
not know whether LIRR was an indemnified party under the contract with S&B. LIRR offered a
certificate of liability insurance as evidence that S&B had to indemnify them, but the certificate is
not a contract, and it explicitly says that it “is issued as a matter of information only and confers
no rights upon the certificate holder.” (LIRR’s Ex. D).
As a matter of last resort, LIRR points to the allegations in its third party complaint as
evidence, but a complaint that is not verified cannot serve as evidence to contest a motion for
summary judgment. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (“A verified complaint
is to be treated as an affidavit for summary judgment purposes, and therefore will be considered
in determining whether material issues of fact exist, provided that it meets the other requirements
for an affidavit under Rule 56[]” (citing, inter alia, 5A Charles A. Wright & Arthur R. Miller,

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Federal Practice and Procedure § 1339, at 152 (1990) (noting that a verified pleading may serve
as an affidavit only if it contains facts known to be true in the affiant's own knowledge and if it
has a certain level of factual specificity)).
“[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Therefore, on the evidence before the Court,
no jury could find for LIRR on this issue because there is no evidence that LIRR is an indemnified
party under the contract.
Said differently,
[w]hen the moving party has pointed to the absence of evidence to support an
essential element on which the party opposing summary judgment has the burden
of proof, the opposing party, in order to avoid summary judgment, must show the
presence of a genuine issue by coming forward with evidence that would be
sufficient, if all reasonable inferences were drawn in his favor, to establish the
existence of that element at trial.
United States v. Rem, 38 F.3d 634, 643 (2d Cir. 1994). Here, S&B has pointed to an absence of
evidence supporting LIRR’s contractual indemnification claim, and LIRR has not presented any
evidence from which the Court may draw any inference.
While it is S&B’s burden as the movant to demonstrate the absence of a material fact, LIRR
must demonstrate that there is evidence upon which a jury could find in its favor. The Court
erroneously placed the burden on S&B to present evidence, and LIRR does the same now. The
standard sought by the LIRR could prevent any defendant against whom there was no evidence
from ever prevailing on a motion for summary judgment. LIRR has presented no testimonial
evidence or documentary evidence to support its claim.
Therefore, as set forth above, LIRR has not presented any evidence to support its
contractual indemnification claim and the claim cannot be sustained.
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Accordingly, upon

reconsideration, S&B’s motion for summary judgment pursuant to Rule 56 dismissing LIRR’s
contractual indemnification claim is granted.
II. CONCLUSION
For the reasons stated above, S&B’s motion for reconsideration is granted in part and
denied in part. It is granted to the extent that its motion for summary judgment dismissing LIRR’s
contractual indemnification claim pursuant to Rule 56 is granted. It is denied to the extent that
LIRR has presented sufficient facts for its contributory negligence claim to be presented to a jury.

It is SO ORDERED:
Dated: Central Islip, New York
June 13, 2017
______/s/ Arthur D. Spatt_________
ARTHUR D. SPATT
United States District Judge

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