Crawford v. U.S. General Services Administration et al

Filing 83

MEMORANDUM-DECISION AND ORDERED, that the U.S. Motion (Dkt. No. 63) is GRANTED; and it is further ORDERED, that the United States is terminated as a defendant in this case; and it is further ORDERED, that the NYSARC Motion (Dkt. No. 69) is DENIED. Signed by Senior Judge Lawrence E. Kahn on December 12, 2016. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHRISTINE CRAWFORD,
Plaintiff,
-against-

1:14-CV-1336 (LEK/CFH)

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
This case—brought by Plaintiff Christine Crawford against Defendants the United States

of America and the Albany County Chapter of NYSARC, Inc.—stems from an alleged slip and
fall that occurred in the parking lot of the Leo W. O’Brien Federal Building in downtown
Albany. Dkt. No. 1 (“Complaint”) ¶¶ 1, 32. Crawford’s claims against the United States are
brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680. Currently
before the Court is the United States’ Motion for Summary Judgment, Dkt. No. 63 (“U.S.
Motion”); see also Dkt. Nos. 63-1 (“U.S. Memorandum”), 32-2 (“U.S. Statement of Material
Facts”), 66 (“U.S. Opposition”), 67 (“NYSARC Response to Statement of Material Facts”), 76
(“U.S. Reply”), 78 (“Plaintiff’s Response to Statement of Material Facts”), and NYSARC’s
Motion for Summary Judgment, Dkt. No. 69 (“NYSARC Motion”); see also Dkt. Nos. 69-4
(“NYSARC Memorandum”), 69-5 (“NYSARC Statement of Material Facts”), 77 (“NYSARC
Opposition”). For the following reasons, the United States’ Motion is granted and NYSARC’s
Motion is denied.

II.

BACKGROUND
A. The O’Brien Building
The O’Brien Building is a ten-story high rise located in downtown Albany, New York.

Pl.’s Resp. SMF ¶ 43. Primarily at issue in this case is the building’s parking lot, which is located
directly to the north of the building and spans between North Pearl Street and Broadway. Id.
¶¶ 44–45. The General Services Administration (“GSA”), a federal agency, owns and manages
the building. U.S. Mem. at 7; see also Pl.’s Resp. SMF ¶ 48 (discussing the GSA’s contracting
for janitorial services).
While GSA acted as the building manager, it contracted out the building’s janitorial
services to NYSARC. Pl.’s Resp. SMF ¶ 48. Although the contract relevant to this case was
signed in 2010, NYSARC and its staff have been performing janitorial services at the O’Brien
Building for at least twenty-nine years. Id. ¶¶ 48, 58. As part of its janitorial duties, NYSARC
was tasked with removing snow and ice from the parking lot and other exterior areas of the
O’Brien Building. Id. ¶¶ 51–52; Dkt. No. 63-16 (“Exhibit L”) at 38–39. GSA did, however,
retain the ability to order additional snow and ice removal outside of normal building hours, to
approve chemicals used for deicing, and to determine the type and duration of certain services
that are diverted to make way for additional snow and ice removal during inclement weather. Ex.
L at 38–39; see also Pl.’s Resp. SMF ¶¶ 51–52 (arguing that “the United States retained
supervisory control” over NYSARC’s snow and ice removal work).
Crawford argues that, outside of the contract, “GSA specifically detailed how they
required the Albany NYSARC to perform the snow removal from the parking lot, where to place
the snow and when and where to remove the snow.” Pl.’s Resp. SMF ¶ 59. In support of this,
2

Crawford cites the deposition transcript of Jose Reyes, an NYSARC employee. Dkt. No. 63-15
(“Exhibit K”). Reyes testified that the general instruction concerning snow removal—unchanged
in his twenty-nine years of employment there—was to push the snow from one side of the lot to
North Pearl Street and Wilson Street, and to pick up and dump the snow from the other side of
the lot into the grass between the lot and the sidewalk adjacent to Broadway. Id. at 28:2–30:1;
accord Pl.’s Resp. SMF ¶¶ 60–62.
B. The Incident
The claims in this case relate to a slip and fall that Crawford suffered in the parking lot of
the O’Brien Building on January 13, 2014. Pl.’s Resp. SMF ¶¶ 1, 19–34. Crawford—then thirtyfive years old—was a legal assistant at the law firm of Featherson, Wiley & Clyne, LLP. Id. ¶ 3.
While not herself a federal employee, Crawford would come to the O’Brien Building each
morning to drop off her son at a (perhaps Orwellian-named) daycare facility there called “Club
Fed.” Id. ¶¶ 1, 4–9, 12.1 The parking lot where the incident occurred is immediately adjacent to
the O’Brien Building, id. ¶ 7, and when dropping off her son at Club Fed, Crawford would
temporarily park in one of several spots in the lot that were designated for parents dropping off or
picking up their kids, id. ¶ 8.
On the morning of January 13, 2014, Crawford entered the O’Brien Building parking lot
as usual, and “did not notice anything unusual about its condition.” Id. ¶¶ 19–20. After exiting
the car, she gathered a diaper bag and her son from the car and began walking toward the
building. Id. ¶¶ 23–26. As she walked, Crawford’s “feet slipped out from under her,” causing her
1

“Club Fed” is normally a pejorative term for minimum security federal prison facilities.
See, e.g., Helena Andrews-Dyer & Emily Heil, What It’s Really Like Inside ‘Club Fed’ Prisons,
Wash. Post, Jan. 5, 2015.
3

to fall and “fracture . . . the radial head of her right elbow.” Id. ¶¶ 32, 35. After she fell and while
on the ground, Crawford “noticed the presence of ‘black ice’” on the parking lot. Id. ¶ 33.
The parties dispute Crawford’s attention level as she navigated the parking lot, as well as
the suitability of her footwear for an Albany winter, in an attempt by Defendants to show that
Crawford’s own negligence was the cause of the fall. U.S. Mem. at 24–25; NYSARC Mem.
at 6–7. In support of this theory, the Government points to portions of Crawford’s deposition
testimony that, under the Government’s view, show she “wasn’t even paying attention” to the
parking lot’s condition and that she was not looking at the ground and instead was “just in [her]
zone rushing” into the building. Pl.’s Resp. SMF ¶¶ 25, 30. Additionally, the Government claims
that Crawford “was not wearing winter boots” and instead “was wearing ankle boots . . . that had
a heel a couple of inches tall,” though Crawford contests these characterizations of her shoes. Id.
¶¶ 27–28.
C. The Summary Judgment Motions
At a January 15, 2016 telephone conference, Magistrate Judge Christian F. Hummel
extended and set the deadline for dispositive motions for March 25, 2016. Jan. 15, 2016 Minute
Entry;2 see also Dkt. No. 62 (ordering the telephone conference). The United States complied
with this deadline by filing a motion for summary judgment on March 25. U.S. Mot. In support
of its motion, the Government argues that (1) because the clearing of ice and snow was delegated
to NYSARC—an independent contractor—the United States cannot be held liable under the
FTCA, (2) the Government’s decision to delegate this responsibility to NYSARC is protected

2

This minute entry was not assigned a docket number, but appears on the docket sheet
immediately following Docket Number 62.
4

under the discretionary function exception to the FTCA, and (3) the sole proximate cause of
Crawford’s fall was her own negligence. U.S. Mem. at 16–25. Along with its brief and exhibits,
the Government also filed a statement of material facts pursuant to Local Rule 7.1(a)(3). U.S.
SMF. When the Government’s motion was filed, a response deadline was set for April 19, 2016.
Docket.
On April 19, Crawford filed her opposition to the Government’s summary judgment
motion. U.S. Opp’n. In that brief, Crawford argues that (1) the degree of control exercised by the
Government over NYSARC in its clearing of the ice and snow from the O’Brien Building
parking lot renders NYSARC a government employee, and not an independent contractor, (2) the
method of snow removal and other issues related to this litigation are not subject to the
discretionary function exception, and (3) Crawford’s behavior was not the sole proximate cause
of the accident. Id. at 8–12. Crawford did not file a response to the Government’s statement of
material facts along with her opposition brief, as is required by Local Rule 7.1(a)(3). Docket.
Also on April 19—over three weeks after the motion deadline—NYSARC filed what it
styled a “cross motion for summary judgment,” NYSARC Mot., along with a statement of
material facts, NYSARC SMF. As Crawford points out, however, Dkt. No. 72 (“Letter Motion to
Strike”), there is nothing “cross” about this motion at all: the motion requests that the Court grant
NYSARC summary judgment against Crawford (not the United States) and “dismiss[] [her]
Complaint in its entirety,” NYSARC Mot.; accord NYSARC Mem.3 In the motion, NYSARC
3

While the Court denied Crawford’s Letter Motion to Strike and ordered briefing on the
merits, Dkt. No. 75, the timeliness of the NYSARC Motion is of course relevant—in addition to
and independent of its merits—in determining whether to grant the motion, see, e.g., Starr Int’l
Co. v. Am. Int’l Grp., Inc., No. 05-CV-6283, 2009 WL 614752, at *1 (S.D.N.Y. Mar. 4, 2009)
(noting the untimely filing of a summary judgment motion after the magistrate’s dispositive
5

argues that (1) it is entitled to summary judgment based on its expert’s opinion that, despite
Crawford’s testimony, there could not have been snow or ice present when she slipped and fell in
the parking lot, NYSARC Mem. at 2–3, (2) even if there was snow or ice, “NYSARC undertook
reasonable and diligent care in its snow removal efforts, id. at 3–5, and (3) Crawford’s own
negligence was the sole proximate cause of her fall, id. at 6–7.
On May 3, Crawford filed her opposition to the NYSARC Motion. NYSARC Opp’n. On
the same day, Crawford also filed a response to the Government’s original statement of material
facts, two weeks after the opposition deadline and just over a week after the Government filed its
reply. Pl.’s Resp. SMF. Crawford never filed a response to NYSARC’s statement of material
facts. Docket.
III.

LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary

judgment if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although “[f]actual disputes that are
irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie
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 (1986); see also Taggart v. Time, Inc., 924
F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).

motion deadline as grounds for its denial); Doe v. British Univs. N. Am. Club, 788 F. Supp.
1286, 1297 (D. Conn. 1992) (denying a summary judgment motion as untimely “regardless of the
merits” when filed after the deadline set by the court’s scheduling order).
6

The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and of identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party
carries the ultimate burden of proof and has failed “to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id.
at 322.
In attempting to repel a motion for summary judgment after the moving party has met its
initial burden, the nonmoving party “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 (1986). At the same time, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000); Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736,
742 (2d Cir.1998). Thus, a court’s duty in reviewing a motion for summary judgment is
“carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo v.
Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
IV.

DISCUSSION
A. The Government’s Motion
1. Timeliness of Crawford’s Statement of Material Facts
The Local Rules of the Northern District of New York establish an additional filing

requirement for summary judgment motions: the statement of material facts. L.R. 7.1(a)(3). By
requiring moving parties to specifically list the undisputed facts they rely on in support of their
7

motion, the rule aims “‘to force litigants to focus sharply on the specific factual issues in
dispute,’ and to enable the Court to ‘move immediately to the gravamen of the case.’” Osier v.
Broome County, 47 F. Supp. 2d 311, 317 (N.D.N.Y. 1999) (quoting Riley v. Town of
Bethlehem, 5 F. Supp. 2d 92, 94 (N.D.N.Y. 1998)).4 Rule 7.1(a)(3) also states that each
“opposing party shall file a response to the [movant’s] Statement of Material Facts . . . admitting
and/or denying each of the movant’s assertions in matching numbered paragraphs.” “The Court
shall deem admitted any properly supported facts set forth in the Statement of Material Facts that
the opposing party does not specifically controvert.” L.R. 7.1(a)(3) (emphasis omitted).
Rule 7.1(b) is also relevant to this case, as it both sets the time for a party to file its
opposition papers and establishes the consequence for failing to meet this deadline. As stated by
the rule, “[t]he Court shall not consider any papers required under this Rule that are not timely
filed . . . unless good cause is shown.” L.R. 7.1(b)(3). Thus, when combined with Rule 7.1(a)(3),
the failure to file a response to the moving party’s statement of material facts by the opposition
deadline may result in any properly supported facts in that statement being deemed admitted for
the purposes of the motion.
In this case, Crawford failed to timely file her response to the Government’s statement of
material facts, only doing so after the Government pointed out this failure in its reply brief. U.S.
Reply at 2–4.5 She also provided no reason at all for the delay in this filing. Because of this, the

4

All of the other federal courts in New York have a similar requirement. S.D.N.Y. &
E.D.N.Y. L.R. 56.1; W.D.N.Y. L.R. 56(a).
5

In an apparent exhibition of tu quoque, the Government also violated the Local Rules
by filing an oversized reply brief without seeking leave of the Court (the same reply brief
complaining of Crawford’s failure to respond to the statement of material facts). See L.R.
7.1(b)(1) (providing that reply briefs “may not exceed [ten] pages”). The parties (and other
8

Court may deem admitted all the properly supported facts in the Government’s statement of
material facts. As discussed below, however, even when considering Crawford’s response, the
United States is still entitled to summary judgment.
2. Independent Contractor Exception
The FTCA excludes the acts of “any contractor with the United States” from the
government’s waiver of sovereign immunity. 28 U.S.C. § 2671; accord United States v. Orleans,
425 U.S. 807, 813–14 (1976); see also Roditis v. United States, 122 F.3d 108, 111–12 (2d Cir.
1997) (finding that the United States cannot be liable even for otherwise nondelegable state law
duties when they are assigned to an independent contractor); B&A Marine Co. v. Am. Foreign
Shipping Co., 23 F.3d 709, 713 (2d Cir. 1994) (“[T]he FTCA explicitly excludes liability of the
Government for the wrongful act or omission of an independent contractor.”). Thus, if NYSARC
is an independent contractor of the government, the United States cannot be held liable for its
acts or omissions related to clearing ice and snow from the parking lot of the O’Brien Building.
“Whether a person is a government employee or an independent contractor is a question
of federal law.” Leone v. United States, 910 F.2d 46, 49 (2d Cir. 1990) (citing Logue v. United
States, 412 U.S. 521, 528 (1973)); accord Johnson v. United States, No. 11-CV-1035, 2012 WL
2921542, at *3 (N.D.N.Y. July 17, 2012) (Kahn, J.); see also B&A Marine, 23 F.3d at 713 (“For
purposes of the FTCA, the common law of torts and agency defines the distinction between an
independent contractor (for whose torts the Government is not responsible) and an employee,
servant or agent (for whose torts the Government is responsible).”). Under federal law, a person

readers) are reminded that the Local Rules are binding on attorneys practicing before this Court.
See L.R. 1.1(d) (“Failure of an attorney or of a party to comply with any provision of these
Rules . . . shall be a ground for imposition of sanctions.”).
9

is a contractor and not an employee of the government if the government “lack[s] the authority
‘to control the detailed physical performance of the contract,’” Leone, 910 F.2d at 49 (quoting
Logue, 412 U.S. at 527), and courts should look to traditional “principles of agency” when
determining whether a person is an independent contractor or employee for FTCA purposes, id.
Under this strict control test, “the crucial factor in distinguishing a federal agency from an
independent contractor is the United States’ authority to control and supervise, on a day-to-day
basis, the detailed physical performance of the contractor.” Moody v. United States, 753 F. Supp.
1042, 1046 (N.D.N.Y. 1990).
None of the evidence submitted by Crawford shows that the Government was empowered
to supervise the day-to-day detailed physical performance of NYSARC, and the facts not in
genuine dispute entitle the United States to summary judgment. See Liranzo v. United States, 690
F.3d 78, 84 (2d Cir. 2012) (“The plaintiff bears the burden of proving subject matter jurisdiction
[under the FTCA] . . . .” (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635,
638 (2d Cir. 2005))); cf. Celotex, 477 U.S. at 322 (holding that summary judgment is appropriate
“against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial”). The
Government’s statement of material facts cites testimony of Reyes—an NYSARC employee—to
show that GSA did not provide instructions on NYSARC’s day-to-day conduct in removing ice
and snow. U.S. SMF ¶ 63 (citing Ex. K. at 30–31). In that deposition, Reyes testified that aside
from a general discussion approximately thirty years ago about where to dump removed snow,
the GSA had no other discussions with him about how to remove snow from the parking lot. Ex.
K at 28:2–30:21.
10

Crawford’s response, pointing to the same deposition testimony of Reyes, fails to raise a
genuine dispute as to this issue. Pl.’s SMF Resp. ¶ 63 (citing Ex. K. at 26–28, 30, 59–60). In the
portion cited by Crawford, Reyes testified that while he or Mike Griswold (another NYSARC
employee) would inspect the parking lot hourly and determine whether a subcontractor (WM
Excavating) needed to be called to salt the entire parking lot, sometimes the security guard
stationed in the lot would call GSA to report ice, which would be passed on to NYSARC. Ex. K
at 26:3–27:14; see also id. at 59:16–60:14 (noting that the security guard, if he saw ice in the
parking lot, would “call [the guard’s] office,” which would then call GSA, which would then call
NYSARC, but that this happened rarely). Reyes also mentioned “a discussion with someone at
GSA about snow removal . . . approximately 30 years ago” giving basic procedures about where
removed snow should be dumped. Id. at 28:2–30:12. This procedure never changed, and Reyes
testified that he had no other discussions with GSA about how to remove the snow. Id.
at 30:13–21.
None of this suggests that GSA held “the authority ‘to control the detailed physical
performance of [NYSARC’s] contract.’” Leone, 910 F.2d at 49 (quoting Logue, 412 U.S. at
527). The contract with NYSARC further confirms this understanding, stating that NYSARC
“will determine how often the work is to be performed, how much labor is needed to perform the
task, what methods will be used to complete the job and which supplies, materials and equipment
are needed.” Ex. L at 7; see also Korotkova v. United States, 990 F. Supp. 2d 324, 328 (E.D.N.Y.
2014) (noting that “[w]hether an entity is classified as a federal employee or an independent
contractor is a matter of law” that can be “appropriately resolved by looking at the language of
the contract between the Government and the contracting entity” (quoting Carter v. United
11

States, No. 96-CV-9139, 1998 WL 744009, at *2 (S.D.N.Y. Oct. 26, 1998))). Additionally, the
other factors used for determining an independent contractor relationship, such as “the source of
the instrumentalities and tools” and “the method of payment,” among others, also show that
NYSARC is an independent contractor. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730,
751–52 (1989); see also, e.g., Ex. L at 7 (discussing the allocation of responsibility between the
GSA and NYSARC).
Nor does the sole instruction concerning where to dump the snow represent control of the
detailed physical performance of NYSARC’s work.6 For example, a contractor hired to build a
house, given specific instructions as to the design of the house and the materials with which to
build it, does not thereby become an employee or servant of the principal. See Hilton Int’l Co. v.
NLRB, 690 F.2d 318, 320 (2d Cir. 1982) (stating that the common-law test turns not on whether
the principal can instruct the contractor as to “the result to be accomplished,” but whether it can
direct “the ‘manner and means’ by which the purported employee brings about that result”
(quoting Lorenz Schneider Co. v. NLRB, 517 F.2d 445, 451 (2d Cir. 1975))). As noted in Leone,
“[t]he question is not whether a contractor must comply with . . . and apply federal standards, but
whether its day-to-day operations are supervised by the Federal Government.” 910 F.2d at 50.
Crawford’s citations to the deposition of Colleen Carey, Pl.’s Resp. SMF ¶¶ 51–52, 78,
81, 88 (citing Dkt. No. 63-17 (“Exhibit M”) at 17–31, 55), similarly fail to show the level of
6

While the Government may be liable for instructing an independent contractor when the
instruction itself is negligent and causes injury, see Sell v. U.S. Dep’t of Justice, No.
07-CV-1205, 2008 WL 1766873, at *4 (E.D. Mo. Apr. 14, 2008) (“Logue also illustrates that the
federal government, through the behavior of its employees, can be liable for damages occurring
under an independent contractor’s care, if caused by a government employee’s instructions.”),
Crawford does not argue on the motion or allege in her Complaint that the instruction itself was a
proximate cause of her fall.
12

control required to establish an agency relationship. In the portion cited, Carey testified that she
occasionally “walk[ed] around the building” to perform “on-spot inspections,” Ex. M.
at 19:9–15, would “work together with the janitorial supervisor to ensure things are getting done
properly” during a snowstorm, id. at 19:20–24, and that, if the guard in the parking lot “[saw]
something that needs attention,” he would contact a GSA employee through intermediaries,
id. at 28:15–30:10; see also id. at 55:15–18 (discussing a call about putting down salt in the
parking lot). Acting “generally as an overseer,” however, is not enough to meet the strict control
test and transform an independent contractor into a federal employee. Leone, 910 F.2d at 50.
“[T]here is abundant case law supporting the proposition that the strict control test is not satisfied
simply because the government retained the right to inspect the progress of [the contractor’s]
work . . . .” Moody, 753 F. Supp. at 1047. Also, occasional requests that NYSARC perform
additional deicing does not constitute control over the detailed physical performance of the
contract, which is required to transform NYSARC into an employee of the Government. E.g.,
Hilton, 690 F.2d at 320. Because the contract and deposition testimony show that NYSARC was
an independent contractor, and Crawford has failed to proffer any evidence raising a genuine
dispute as to this point, the United States is entitled to judgment as a matter of law.
3. Discretionary Function Exception
The FTCA bars federal liability for claims “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty.” 28 U.S.C. § 2680(a). In further
support of its motion for summary judgment, the Government argues that the United States’
decision to delegate responsibility for clearing snow and ice to NYSARC cannot form the basis

13

for FTCA liability because the delegation of a task to and the subsequent supervision of an
independent contractor is a discretionary function. U.S. Mem. at 20–24. The Court agrees.
“[T]he United States cannot be held liable for the selection and supervision of
independent contractors, because the selection and supervision of contractors is a discretionary
function . . . .” Shivcharan v. United States, No. 04-CV-1296, 2005 WL 408046, at *2 (E.D.N.Y.
Feb. 15, 2005); see also Yesina v. United States, 911 F. Supp. 2d 217, 222 (E.D.N.Y. 2012)
(finding that “the decision to supervise [the contractor] and periodically inspect the premises”
was subject to the discretionary function exception and could not form the basis for liability).
“The decision to hire an independent contractor to render services for the United States is
precisely the type of decision that the exception is designed to shield from liability because it
involves exercising judgment based on considerations of policy, and the case law clearly
establishes that the award of contracts falls within the ambit of the discretionary function
exception.” Williams v. United States, 50 F.3d 299, 310 (4th Cir. 1995). Even more specifically,
“it is well established that the United States’ decision to contract with independent companies to
ensure maintenance of premises is a discretionary function, insulated from liability.” Moreno v.
United States, 965 F. Supp. 521, 526 (S.D.N.Y. 1997) (citing Williams, 50 F.3d at 310).
In her brief, Crawford instead argues that the Government’s negligence comes from its
“decision making process” concerning “the method of snow removal and the failure to employ
de-icing procedures,” which Crawford describes as “the negligence of an employee or employees
of the United States in the performance of a function that is normally [performed] by a private
citizen” and thus that it is not subject to the discretionary function exception. U.S. Opp’n at 11.
This argument ignores the Government’s delegation of this function to NYSARC as its
14

independent contractor, and instead seems to argue that the United States failed to perform a
nondelegable duty. But “courts have consistently held that non-delegable duties may not be used
as a means to impose liability on the Government under the FTCA.” Moreno, 965 F. Supp.
at 526; accord Roditis, 122 F.3d at 111–12.
The United States’ decision to hire NYSARC to clear ice and snow from the O’Brien
Building (as well as its subsequent supervision) is subject to the FTCA’s discretionary function
exception, and the United States cannot be held liable for the subsequent actions of NYSARC
due to the independent contractor exception. Accordingly, the Government is entitled to
judgment as a matter of law.
B. NYSARC’s Motion
1. Timeliness of the Motion
As discussed above, NYSARC’s motion for summary judgment—styled as a “cross
motion”—was filed on the opposition deadline for the Government’s motion, over three weeks
after the deadline to file dispositive motions. NYSARC Mot.; Jan. 15, 2016 Minute Entry. Rule
56(b) of the Federal Rules of Civil Procedure provides that the Court may set the deadline for
filing summary judgment motions, as does Local Rule 16.1. See L.R. 16.1(f) (“The Court shall
strictly enforce any deadlines that it establishes in any case management order . . . .”); see also
Fed. R. Civ. P. 16(b)(3)(A) (providing that the district court must issue a scheduling order
limiting the time to file motions).
In this case, NYSARC’s failure to timely file is “a proper basis for denying [its] summary
judgment motion.” Kinberg v. Colorforms, No. 89-CV-1156, 1991 WL 285621, at *4 (S.D.N.Y.
Dec. 31, 1991); accord, e.g., Dedge v. Kendrick, 849 F.2d 1398, 1398 (11th Cir. 1988) (per
15

curiam); CPALead, LLC v. Adeptive Ads LLC, No. 14-CV-1449, 2016 WL 4941991, at *1–2
(D. Nev. Sept. 14, 2016); Brown v. Kia Motors Corp., No. 06-CV-804, 2009 WL 5178733, at *1
(W.D. Pa. Dec. 21, 2009); Julian v. Equifax Check Servs., Inc., 178 F.R.D. 10, 12–16 (D. Conn.
1998). The motion was not a cross motion, which the Local Rules define as “a competing request
for relief or order similar to that requested by another party against the cross-moving party.” L.R.
7.1(c) (emphasis added); see also id. (“If a party makes a cross-motion, it must join its cross
motion brief with its opposition brief . . . .”). Instead, this was an independent dispositive motion,
filed against Crawford in parallel to the Government’s motion (not in competition with it).
Accordingly, the dispositive motion deadline applied. NYSARC also has made no attempt to
show good cause for its belated filing. Because NYSARC failed to file its motion by the deadline
set by Judge Hummel, its motion for summary judgment is denied.
2. Merits
Even if the Court were to reach the merits of NYSARC’s motion, it would still be denied
because it has failed to show the absence of a genuine dispute and NYSARC is not entitled to
judgment as a matter of law. NYSARC makes three arguments in support of its motion, which
are discussed in turn below.
First, in an ontological twist, NYSARC argues that there never was any ice that Crawford
slipped on, that it was impossible for there to have been any ice, and thus that Crawford’s claim
of having slipped on ice is pure fiction. NYSARC Mem. at 2–3. In support of this point,
NYSARC relies on the affidavit of its purported meteorological expert, Howard Altschule, in
which Altschule claims that because of the sky conditions, precipitation, and temperature on the

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days preceding and the day of the accident, “no snow or ice was present on unexposed, untreated,
and undisturbed surfaces.” Dkt. No. 69-1 (“Altschule Affidavit”) ¶¶ 6–14.7
This fact is clearly disputed. Crawford provided an affidavit of her own purported expert,
which expresses that snow from earlier precipitation likely melted, flowed into the lot, and
refroze, forming the ice that Crawford slipped on. Dkt. No. 77-1 (“Gailor Affidavit”) ¶¶ 7–12.
Crawford’s own affidavit also disputes NYSARC’s theory. See Dkt. No. 77-2 (“Crawford
Affidavit”) ¶ 4 (“When I was on the ground I realized that I was lying in ice that had frozen on
the surface of the parking lot.”). The Court’s role on summary judgment is to identify genuine
issues of fact, not to decide them. Gallo, 22 F.3d at 1224. Because the existence of snow and ice
in the parking lot is a disputed issue of fact, NYSARC’s motion for summary judgment on this
ground must be denied.
Second, NYSARC argues that it “undertook reasonable and diligent care in its snow
removal efforts,” and thus that it cannot be held liable for Crawford’s fall. NYSARC Mem.
at 3–5. The sole case cited in this section of NYSARC’s brief shows that it is not entitled to
summary judgment: “The very question of whether the defendant’s conduct amounts to
‘negligence’ is inherently a question for the fact-trier in all but the most egregious instances.”
Cartin v. United States, 853 F. Supp. 63, 65 (N.D.N.Y. 1994). Also, the facts in Cartin (in which
the court in fact denied summary judgment as well) differ from the instant case, as the issue in

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While Crawford failed to file a response to NYSARC’s statement of material facts, the
Court—in light of NYSARC’s own procedural failures—will look to other record evidence in
assessing the merits of NYSARC’s motion. It is worth noting, and is an additional independent
ground for denying the motion as to this point, that NYSARC failed to include any facts
concerning its meteorological theories in its statement of material facts. NYSARC SMF; cf. id.
¶¶ 24–25 (noting Crawford’s testimony concerning the existence of black ice and a snowbank).
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that case concerned the decision to voluntarily clear snow from the municipality’s sidewalk and
adjoining areas (as opposed to premises liability). Id. at 64–65. Under New York law, a
defendant may be found liable for a hazardous condition of snow or ice on its own premises
provided that “it had actual or constructive notice of the hazardous condition and that a sufficient
period of time elapsed since the cessation of precipitation to permit the party to remedy the
condition.” Lattimore v. First Mineola Co., 874 N.Y.S.2d 253, 255 (App. Div. 2009) (quoting
Lee-Pack v. 1 Beach 105 Assocs., LLC, 814 N.Y.S.2d 275, 276 (App. Div. 2006)). NYSARC
provided no evidence as to these points, and its recitation of its employees’ general snow
removal practices, NYSARC Mem. at 4–5, is insufficient to show that they were not negligent in
this particular case (a question ordinarily left to the jury). This portion of NYSARC’s motion
must be denied.
Finally, NYSARC claims that it is entitled to summary judgment because Crawford’s
own “inattention and negligence were the sole proximate cause[s] of her injuries.” NYSARC
Mem. at 6–7. New York is a pure comparative negligence state, meaning that the culpable
conduct of a plaintiff is an affirmative defense that, if proved, serves to reduce the plaintiff’s
recovery in proportion to her share of fault. N.Y. C.P.L.R. 1411, 1412; see also Knieriemen v.
Bache Halsey Stuart Shields Inc., 427 N.Y.S.2d 10, 14 (App. Div. 1980) (discussing New York’s
comparative negligence scheme); Shanahan v. Orenstein, 383 N.Y.S.2d 327, 330–31 (App. Div.
1976) (describing New York’s system as “pure comparative negligence”). As mentioned,
however, NYSARC argues not that Crawford merely contributed to the accident, but that her
“inattention and negligence were the sole proximate cause of her injuries,” meaning by extension
that NYSARC’s conduct was not a proximate cause of the fall. NYSARC Mem. at 6–7; see also
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79 N.Y. Jur. 2d Negligence § 116 (2016) (“New York adopted a ‘pure’ comparative negligence
system which allows a plaintiff whose concurrent or contributory negligence is not the sole
proximate cause of the plaintiff’s injury to recover . . . .”).
NYSARC’s argument confuses the meaning of proximate cause. To establish proximate
cause, a plaintiff must simply show that “the defendant’s negligence was a substantial cause of
the events which produced the injury.” Derdiarian v. Felix Contracting Corp., 414 N.E.2d 666,
670 (N.Y. 1980). When ice is allowed to accumulate on premises and results in a slip and fall,
the question of whether the failure to clear the ice is a proximate cause of the fall is left to the
jury in all but the clearest cases. See id. at 668 (“As a general rule, the question of proximate
cause is to be decided by the finder of fact . . . .”); MacKenzie v. City of New York, 4 N.Y.S.3d
110, 112 (App. Div. 2015) (affirming denial of summary judgment in a slip and fall case due to
the “existence of triable issues of fact as to whether [the third-party defendant’s] failure to clear
his sidewalk of snow and ice was a proximate cause of the” fall, because “the question whether a
reasonable prudent person should have anticipate the consequences which followed [such failure]
is a question to be determined by a jury” (alteration in original) (quoting Morris v. Nacmias, 666
N.Y.S.2d 202, 203 (App. Div. 1997))); Pfeffer v. City of New York, 270 N.Y.S.2d 564, 564–65
(App. Div. 1966) (reversing the trial court’s judgment for the defendant because there were
triable issues of fact as to the opportunity to remove the ice and the proximate cause of the fall).
This is because an invitee’s slip on ice left in a parking lot is spatially related to and foreseeable
from the failure to properly treat or clear the ice, and public policy interests suggest that
landholders should keep their property in a reasonably safe condition for guests. See Pagan v.
Goldberger, 382 N.Y.S.2d 549, 550–52 (App. Div. 1976) (discussing the test for proximate
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cause). Even if Crawford was careless and negligent in her attention and footwear, this only
presents a question of fact for the jury as to the relative degrees of her and NYSARC’s fault. It
does not remove legal causation from NYSARC’s failure to clear the ice. Accordingly,
NYSARC’s motion for summary judgment is denied.
C. Supplemental Jurisdiction
The only basis for subject matter jurisdiction asserted in the Complaint is the presence of
a federal defendant in this case. Compl. ¶ 1; see 28 U.S.C. § 1346(b)(1) (providing district courts
jurisdiction to hear claims for money damages against the United States). Because the Court is
granting the United States’ motion for summary judgment, the Court may—but need
not—decline supplemental jurisdiction over Crawford’s state law claims against NYSARC. See
28 U.S.C. § 1367(c)(3) (permitting district courts to decline supplemental jurisdiction when “the
district court has dismissed all claims over which it has original jurisdiction”). The decision
whether to continue exercising supplemental jurisdiction is subject to the district court’s
discretion. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (“[A] federal court
should consider and weigh in each case, and at every stage of the litigation, the values of judicial
economy, convenience, fairness, and comity in order to decide whether to exercise
[supplemental] jurisdiction . . . .” (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
726–27 (1966)); Mauro v. S. New England Telecom., Inc., 208 F.3d 384, 388 (2d Cir. 2000)
(noting that the courts of appeals “review a district court’s exercise of supplemental jurisdiction
for abuse of discretion,” and finding such jurisdiction proper in that case).
In this matter, considerable time, effort, and resources have been expended to reach the
present stage of litigation—both by the parties and by the Court. Sending a trial-ready case in
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which discovery has concluded to state court seems contrary to the guidance of the Supreme
Court and may result in a considerable loss of judicial economy, convenience, and fairness.
Carnegie-Mellon, 484 U.S. at 350; see also Kroshnyi v. U.S. Pack Courier Servs., Inc., 771 F.3d
93, 102 (2d Cir. 2014) (noting the extended length of litigation, conclusion of discovery,
submission of dispositive motions, and readiness for trial as reasons supporting the continued
exercise of supplemental jurisdiction). Therefore, the Court will retain supplemental jurisdiction
over Crawford’s claims against NYSARC.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the U.S. Motion (Dkt. No. 63) is GRANTED; and it is further
ORDERED, that the United States is terminated as a defendant in this case; and it is

further
ORDERED, that the NYSARC Motion (Dkt. No. 69) is DENIED; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

December 12, 2016
Albany, New York

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