Defendants’ motion for summary judgment is held in abeyance for a duration of sixty days from the date of this Order so as to allow plaintiff to conduct such discovery and to collect such evidence, in compliance with the form specified in Rule 56 of the Federal Rules of Civil Procedure and the local civil rules of this Court, as may be necessary to demonstrate the existence of a genuine issue for trial. Fed.R.Civ.P. 56(f). At the expiration of this sixty-day period, defendant may reassert its motion for summary judgment for dismissal of plaintiffs complaint by filing notice thereof with the Clerk of this Court, and by serving a copy of such notice upon
BACKGROUND
The instant action presents a classic slip- and-fall negligence claim that, having been removed from the state court system of the State of New York, comes before this Court through its diversity jurisdiction. The defendant now moves for summary judgment seeking the dismissal of plaintiffs claim. Plaintiff, in turn, contends that this motion is premature and requests additional time for discovery. Although, as will be discussed, plaintiff has failed to submit a statement of material facts alleged to be in dispute, as is required by Local Civil Rule 3(g) of the United States District Courts for the Southern and Eastern Districts of New York, the Court concludes that the record before it is sufficient to justify a limited extension of the time for discovery in accordance with the Court’s Order as set forth above.
Viewed in the light most favorable to the plaintiff, the facts of this case are as follows. In the morning of September 20,1989, plaintiff Evelyn Rivera was commuting to her place of employment at the Morgan Station branch of the United States Post Office located at 31st Street and 9th Avenue in Manhattan. Shortly after 7:00 A.M. on this rainy morning, Ms. Rivera set foot upon a descending escalator, identified as escalator #26B, located at 32nd Street and 7th Avenue, near Madison Square Garden. Upon getting on the escalator, Ms. Rivera claims that, stepping with her right foot, she attempted to walk down one step to the succeeding esealator stair. Ms. Rivera asserts that, at this instant, her right foot slipped on a dark liquid substance on the stair of the escalator, causing her to fall backwards. As a result of this fall, Ms. Rivera broke her left ankle. In considerable pain, she then stood herself upon her right foot, and hopped off the escalator when it reached the bottom. She was then met by Officer Blake, an Amtrak police officer, who spoke with Ms. Rivera regarding her injury, inspected the accident site, and prepared a police report. In particular, Officer Blake noted in his report that he did not observe any hazardous condition. See Amtrak Exh. F. An ambulance soon arrived to take Ms. Rivera to a hospital.
On June 29, 1990, Ms. Rivera brought suit, under a negligence theory of recovery, in the Supreme Court of the State of New York for Bronx County against both defendant National Railroad Passenger Corporation [hereinafter “Amtrak”], the owner of the escalator, and Otis Elevator Company, Inc.
Defendant Amtrak brings this motion for summary judgment contending that plaintiff Rivera is unable to present a genuine issue for trial. Defendant argues that summary judgment should be granted for the dismissal of the complaint because plaintiff is unable to proffer any evidence that Amtrak, through its employees, was on notice—whether actual or constructive—of the alleged hazardous conditions that caused Ms. Rivera to fall. Defendant further argues that summary judgment should be granted because plaintiff has failed to include, in its papers opposing defendant’s motion, a statement of material facts in dispute, as is required by Local Civil Rule 3(g) of this judicial district. Defendant contends that because Amtrak has asserted in its 3(g) statement that the absence of notice is not in genuine dispute, and plaintiff has failed to controvert this assertion in a 3(g) statement of its own, no triable issue therefore is presented as to the defendant’s notice of any hazardous condition. In addi
DISCUSSION
I. Standards for Granting Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that a district court shall grant a motion for summary judgment if it determines that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Under this standard, summary judgment is proper if “viewing the record in the light most favorable to the nonmoving party, the evidence offered demonstrates that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law.” Pension Benefit Guar. Corp. v. LTV Corp., 875 F.2d 1008, 1015 (2d Cir.1989) (internal quotations omitted), rev’d on other grounds,
The mere existence of disputed factual issues is not enough to defeat a motion for summary judgment. See Knight v. United States Fire Ins. Co.,
The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. See Consarc Corp. v. Marine Midland Bank, N.A.,
Where the nonmoving party is unable to demonstrate the existence of a genuine issue of material fact, but the court is nevertheless satisfied that a triable issue may be presentable upon further discovery, the court may order a continuance pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. Turning to the instant case, plaintiff Rivera contends that defendant’s application for
II. Effect of Plaintiff’s Failure to Include a 8(g) Statement
Defendant claims that summary judgment should be granted dismissing the complaint because plaintiff has failed to submit a short and concise statement of the material facts alleged to be in dispute, as is required by Local Civil Rule 3(g) of the United States District Courts for the Southern and Eastern Districts of New York.
Although some district courts within the Southern and Eastern Districts of New York, in light of the circumstances of the-particular ease, have strictly construed Local Rule 3(g) to deem admitted as fact the allegations contained in the movant’s Rule 3(g) statement, see, e.g., Goldberg v. Colonial Metal Spinning and Stamping Co., 92 Civ. 3721 (JFK),
In addition, the relationship between Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 3(g), as considered in the context of the facts that defendant Amtrak asserts within its 3(g) statement, warrants the rejection of defendant’s argument that summary judgment should be granted on account of plaintiffs procedural default. Logic suggests that Local Rule 3(g) was enacted to aid the district court in reaching its Rule 56 determination as to whether a genuine issue of material fact exists. Cf. Dawson Indus. v. Affiliated FM Ins. Co.,
Turning to the instant case, defendant asserts in item 6 of its 3(g) statement that there is no genuine dispute that “[defendant [lacked] actual or constructive notice of the alleged condition of the escalator prior to or at the time of the accident.” Amtrak Local Civil Rule 3(g) Statement, item 6. For purposes of determining the effect of plaintiffs procedural default, this assertion fails to foreclose the material fact issues of (i) defendant’s actual knowledge of any hazardous condition, and (ii) what, if any, precautionary measures defendant took with respect to the maintenance of the escalator upon which plaintiff Rivera slipped and fell. The Court reaches this conclusion on the basis of two reasons, each of which the Court regards as dispositive. First, defendant has not submitted to the Court any evidence—in the form of affidavit, deposition transcript, or documentation—'that supports its assertion as to this matter. The only evidence it has submitted that even remotely touches upon this issue of fact is the deposition testimony of Mr. Kevin Hume, an employee of Amtrak who was assigned to the maintenance of the escalator upon which Ms. Rivera fell. Mr. Hume testified that, at the time of the acci
Second, defendant’s assertion within its 3(g) statement that there was neither actual nor constructive notice of a hazardous condition constitutes an ultimate or conclusory fact, and as such is not to be considered as part of the factual record to be evaluated by this Court. Fed.R.Civ.P. 56(e) requires that the affidavits supporting a motion for summary judgment set forth facts made on personal knowledge. See Fed.R.Civ.P. 56(e). The legal conclusions or inferences that a court may draw from an array of facts “cannot be utilized on a summary judgment motion.” 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2738, at 489 (1983). Because the term “notice,” as it relates to plaintiffs cause of action, is a legal buzzword that implicates whether the defendant has fulfilled its duty to act as a reasonably prudent person under like circumstances to protect the plaintiff from foreseeable risks, defendant’s naked allegation of notice cannot form part of the factual record.
In sum, under the circumstances of the instant action, the Court rejects the defendant’s contention that summary judgment should be granted dismissing the complaint because of certain alleged deemed admissions of fact resulting from plaintiffs failure to file a 3(g) statement. Thus, the Court will now turn its attention to plaintiffs ability to obtain a continuance for further discovery notwithstanding its inability to present at this juncture of litigation a genuine issue of material fact.
III. Availability of a Continuance
Plaintiff, through her counsel’s affidavit in opposition to defendant’s motion for summary judgment, contends that defendant’s motion is premature and that plaintiff should be allowed to complete its discovery before this motion is considered by the Court. In support of this contention, plaintiff asserts that “the deposition witness for the moving party lacked the requisite knowledge about how the escalators are generally maintained and therefore did not allow plaintiff an ample opportunity to inquire into fact that may shed light on the notice question.” Tanenbaum Aff., item 7. Plaintiff further asserts that additional depositions are required to be taken of employees of the maintenance company that had been engaged by Amtrak at the time of plaintiffs accident to clean the escalator upon which Ms. Rivera slipped and fell. See id. item 8. As a result of this further discovery, plaintiff contends that she will be able to demonstrate that a recurring hazardous condition existed as to the accumulation of rainwater on the escalator in question so as to give rise to a triable fact issue of whether defendant Amtrak, through is agents and delegates, exercised reasonable care in maintaining the escalator in question. See id. items 9-10.
Defendant opposes plaintiffs request to delay consideration of this motion pending further discovery and sets forth three arguments in support of its opposition. First, defendant contends that its deponent, Kevin Hume, was a knowledgeable witness as to the how the escalator in question was maintained at the time of the accident. Second, defendant argues that given that the deposition of Mr. Hume was taken—in presence of plaintiffs counsel—in November 1991, and this motion for summary judgment was not filed by defendant until almost one year later, plaintiff had sufficient time to develop through discovery the factual record required for the sustenance of this action. Third, defendant argues that because the parties had entered into a stipulation agreeing that all discovery would be completed by
Rule 56(f) of the Federal Rules of Civil Procedure provides the procedural mechanism for a court’s disposition of a motion for summary judgment where “the affidavits of a party opposing the motion ... cannot for reasons stated present ... facts essential to justify the party’s opposition.” Fed.R.Civ.P. 56(f). When this is the ease, Rule 56(f) provides the district court with three alternatives for dealing with the motion for summary judgment. The court may (i) “refuse the application for judgment,” (ii) “order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had,” or (iii) “make such other order as is just.” Fed.R.Civ.P. 56(f).
Under the law of the Second Circuit, a court’s grant of a continuance for additional discovery is by no means automatic. “[A] mere hope ... that further evidence may develop prior to trial is an insufficient basis upon which to justify the denial of summary judgment.” Leon v. Murphy,
In assessing plaintiffs compliance with the above-stated criteria for obtaining a continuance to conduct further discovery, the Court notes that plaintiff, through her counsel’s affidavit, (1) has set forth the facts that are sought and how they are to be procured, and (2) has explained how these facts are reasonably expected to create a genuine issue of material fact. As to the third and fourth criteria, plaintiffs counsel directs the Court’s attention to the deposition testimony of Mr. Kevin Hume, the Amtrak employee who was responsible for overseeing the maintenance of the escalator upon which Ms. Rivera slipped and fell, and this deponent’s lack of personal knowledge as to said escalator’s inspection status as of the time of Ms. Rivera’s accident. Plaintiffs counsel, however, has not tendered any explanation as to why, in light of Mr. Hume’s insufficient testimony, he has failed to take depositions of the relevant employees of the maintenance firm that Amtrak engaged at that time to maintain the escalator in question.
Upon balancing the circumstances of this case and the factual record that has been established through the defendant’s submission of deposition transcripts, the Court concludes that a limited continuance for additional discovery is appropriate at this time. Despite the fact that plaintiff undeniably has been slow in prosecuting this case, the deposition transcripts that have been submitted nevertheless outline a negligence claim that, with additional factual foundation, could necessitate a trial to allow a jury to apply the reasonable person standard. See Tragni v. Establissement Maritime Camille,
Nevertheless, the Court does not take lightly plaintiffs sluggish conduct of this litigation. Accordingly, as earlier set forth, the plaintiff will only be granted a sixty-day period from the date of this Order to conduct such discovery as plaintiff reasonably deems necessary. Defendant is likewise ordered to act in the utmost good faith to permit the plaintiff to arrange and to conduct such discovery and depositions as plaintiff may request within the time period that has been specified herein. In the absence of exceptional circumstances, the Court will be remiss to grant any further extension of time for discovery should the defendant renew its motion upon the expiration of this time allotment.
CONCLUSION
Defendants’ motion for summary judgment is held in abeyance for a duration of sixty days from the date of this Order so as to allow plaintiff to conduct such discovery and to collect such evidence, in compliance with the form specified in Rule 56 of the Federal Rules of Civil Procedure and the local civil rules of this Court, as may be necessary to demonstrate the existence of a genuine issue for trial. Fed.R.Civ.P. 56(f). At the expiration of this sixty-day period, defendant may reassert its motion for summary judgment for dismissal of plaintiffs complaint by filing notice thereof with the Clerk of this Court, and by serving a copy of such notice upon plaintiffs counsel. Should it so move, defendant should resubmit to the Court, and serve upon plaintiffs counsel, a duplicate of both its’original motion papers for summary judgment and its original reply papers in connection therewith, as previously submitted to this Court. The time frame for the return date of this motion, and the time frame and form for the plaintiffs opposition to this motion and the defendant’s reply thereto, shall be in accordance with Rule 56 of the Federal Rules of Civil Procedure and the local civil rules of this Court.
SO ORDERED.
Notes
. Plaintiff alleged in her complaint that Otis Elevator Company, Inc. participated in the maintenance and operation of the escalator. The claims against defendant Otis were discontinued with prejudice pursuant to a Stipulation of Discontinuance dated February 5, 1992.
. Local Civil Rule 3(g) provides as follows:
Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement constitutes grounds for denial of the motion.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.