Cruz v. Wyckoff Heights Med. Center et al

Filing 97

OPINION AND ORDER re: 93 MOTION to Strike Document No. 90 filed by John Leison, Wyckoff Heights Med. Center. The following paragraphs from Pl.'s Statement do not cite to any admissible evidence in the record, and thus the Court wi ll not consider them pursuant to Rule 56(c)(1)(A) and Local Rule 56.1(d): (As further set forth in this Order.) The Court will reserve judgment on whether to disregard the following paragraphs in the Cruz Aff. that, according to Defendants, contra dict Plaintiffs previous deposition testimony: 16, 17, and 22. Motions for reconsideration must be submitted on or before July 29, 2016. See Local Rule 6.3 (permitting the Court to set a deadline for motions for reconsideration). If such a motion is made, the moving papers must make specific reference to individual paragraphs in Pl.'s Statement, Pl.'s Response, and/or the Cruz Aff., and must contain specific pinpoint citations to evidence already in the record. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 93. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 7/19/2016) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAVID CRUZ,
Plaintiff,

OPINION AND ORDER
13 Civ. 8355 (ER)

- against WYCKOFF HEIGHTS MEDICAL CENTER and
JOHN LEISON, Director of Radiology,
Defendants.

Ramos, D.J.:
Wyckoff Heights Medical Center (“WHMC”) and John Leison (together, “Defendants”)
bring this motion to strike certain statements, responses, and paragraphs from Plaintiff’s
submissions in opposition to Defendants’ motion for summary judgment. (Doc. 93).
Federal Rule of Civil Procedure 56 (“Rule 56”) requires a party that is asserting a fact on
summary judgment to cite “to particular parts of materials in the record.” Rule 56(c)(1)(A).
Furthermore, “[a]n affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Rule 56(c)(4). Where a party fails to
assert a fact pursuant to Rule 56(c), the court is permitted to consider the fact undisputed for
purposes of the motion. See Rule 56(e)(2).
Local Civil Rule 56.1 for the Southern District of New York (“Local Rule 56.1”) requires
the party moving for summary judgment to submit a “short and concise statement, in numbered
paragraphs, of the material facts as to which the moving party contends there is no genuine issue
to be tried.” Local Rule 56.1(a). It also requires the party opposing summary judgment to
include correspondingly numbered paragraphs responding to the movant’s statement, and an

additional, separate statement of materials facts, if necessary. See Local Rule 56.1(b). Any
paragraph from the movant’s statement that is not “specifically controverted by a
correspondingly numbered paragraph” in the opponent’s statement is “deemed admitted for
purposes of the motion.” Local Rule 56.1(c). “Each statement by the movant or opponent
pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of
material fact, must be followed by citation to evidence which would be admissible, set forth as
required by Fed. R. Civ. P. 56(c).” Local Rule 56.1(d).
There are four documents at issue on this motion: (1) Defendants’ Rule 56.1 Statement
of Undisputed Material Facts (“Defs.’ Statement”) (Doc. 61), (2) Plaintiff’s Response to
Defendants’ Rule 56.1 Statement of Undisputed Material Facts (“Pl.’s Response”) (Doc. 73), (3)
Plaintiff’s Counter Statements of Material Facts (“Pl.’s Statement”) (Doc. 75), and (4) the
Affidavit of Plaintiff David Cruz (“Cruz Aff.”) (Doc. 76).
Defendants first move to strike all paragraphs from Pl.’s Response that do not contain
specific citations to admissible evidence, and to deem as admitted all correspondingly numbered
paragraphs from Defs.’ Statement. Because nearly all of the paragraphs in Pl.’s Response are
boilerplate responses that do not cite specific evidence, and because Pl.’s Statement does not
independently cite to admissible evidence to the contrary, the following paragraphs from Defs.’
Statement are deemed admitted pursuant to Rule 56(e)(2) and Local Rules 56.1(c) and 56.1(d):
9, 10, 16–22, 29–32, 34–40, 42, 45–47, 50–53, 56, 57, 59, 61, 62, 64–73, 75–81, 86–88, 90, 92–
95, 97–104, 106–112, 115–119, 121–125, 134, 135, 138, 139, 141, 142, 144–147, 150–153, 155–
161, 163–170, 172, 173, 175–180, 182–185, and 187–189. See, e.g., Dasrath v. Stony Brook
Univ. Med. Ctr., No. 12 Civ. 1484 (SJF), 2015 WL 1223797, at *1 (E.D.N.Y. Mar. 17, 2015)
(“Statements in the Def. 56.1 Stmt. to which plaintiff objected but failed to provide a citation to

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the evidence as required by Local Rule 56.1(d) are not considered disputed.”) (citing Feis v.
United States, 394 F. App’x 797, 799–800 (2d Cir. 2010)).
The following paragraphs from Pl.’s Statement do not cite to any admissible evidence in
the record, and thus the Court will not consider them pursuant to Rule 56(c)(1)(A) and Local
Rule 56.1(d): 1–9, 11–16, 24, 28–33, 36–40, 53–60, 70, 73, 76–78, 80, 83, 86, 97–99, 101–106,
108, 116–121, 125–130, 134–140 (including both paragraphs numbered 137), 144–150, the first
paragraph numbered 153 (citing Foti Tr. 151–52), 158, 160, 173, 179, 180, 188, and 189. See,
e.g., Shkreli v. JPMorgan Chase Bank, N.A., No. 13 Civ. 5647 (LGS), 2015 WL 1408840, at *1
n.1 (S.D.N.Y. Mar. 27, 2015) (declining to consider paragraphs from plaintiff’s 56.1 statement
that were not supported by citation to evidence in record) (citing Shepard v. Frontier Commc’ns
Servs., Inc., 92 F. Supp. 2d 279, 284 (S.D.N.Y. 2000)).
The Court will reserve judgment on whether to disregard the following paragraphs in
Pl.’s Statement, which cite evidence that is in the record but does not, according to Defendants,
support the factual assertions made therein: 18, 22, 71, 72, 107, 112, and 152.
Defendants also move to strike paragraphs from the Cruz Aff. Based on Rule 56(c)(4), a
court “may ‘strike portions of an affidavit that are not based upon the affiant’s personal
knowledge, contain inadmissible hearsay[,] or make generalized and conclusory statements.’”
New World Sols., Inc. v. NameMedia Inc., 150 F. Supp. 3d 287 (S.D.N.Y. 2015) (quoting
Rockport Co. v. Deer Stags, Inc., 65 F. Supp. 2d 189, 191 (S.D.N.Y. 1999)).
Cruz Aff. ¶ 3 states that “WHMC never distinguished between FMLA permitted
intermittent leave and non-approved leave in disciplining me for violation of WHMC’s time and
attendance policy” (emphasis added). Without resolving whether the evidentiary record
otherwise supports this statement, there is at least a basis for personal knowledge because the

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