Bain v. Town of Hempstead

E.D. New York

Bain v. Town of Hempstead

DecidedFebruary 5, 2021

Docket2:17-cv-06554

StatusUnknown

This text of Bain v. Town of Hempstead (Bain v. Town of Hempstead) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bain v. Town of Hempstead, (E.D.N.Y. 2021).

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Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------X DUSTIN BAIN and T.B. by his father and natural guardian,

Plaintiffs, MEMORANDUM - against - AND ORDER

TOWN OF HEMPSTEAD and TOWN OF CV 17-6554 (AKT) HEMPSTEAD ANIMAL SHELTHER,

Defendants. ------------------------------------------------------------X TOWN OF HEMPSTEAD,

Third-Party Plaintiff,

- against -

A FURR-EVER HOME, INC., LUCRECIA SKELLENGER, SHAWN BARROWS, and JOYCE BARROWS,

Third-Party Defendants. ------------------------------------------------------------X A. KATHLEEN TOMLINSON, Magistrate Judge: I. PRELIMINARY STATEMENT Plaintiffs T.B., a minor, and his father and natural guardian, Dustin Bain,1 commenced this action against the Town of Hempstead (the “Town”) and the Town of Hempstead Animal Shelter (the “Town Animal Shelter”) (collectively, the “Defendants”). See generally Amended Complaint (“Am. Compl.”) [DE 22]. The Amended Complaint alleges that an American Bulldog named “Monte,” who had a history of aggression towards children and other dogs, was surrendered to the Town Animal Shelter. The Town Animal Shelter placed Monte with a rescue

1 Although there are two named Plaintiffs, when the Court refers to a singular “Plaintiff,” the Court is referring to the minor Plaintiff T.B. home in Pennsylvania without disclosing Monte’s history of aggression. The Pennsylvania rescue home then facilitated Monte’s adoption with T.B.’s grandparents in West Virginia. While T.B. was at a family gathering with his grandparents and Monte, Monte bit T.B. in the face. Plaintiffs assert three causes of action and seek to hold both Defendants liable for T.B.’s injuries

pursuant to theories of strict liability and negligence. They also seek to hold the Town liable under a theory of respondeat superior. The parties in this action have consented to this Court’s jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See DE 10-11. Presently before the Court is Defendants’ motion for summary judgment on all three claims asserted by Plaintiffs. See generally Defendants’ Memorandum of Law in Support of Motion for Summary Judgment (“Defs.’ Mem.”) [DE 36-2]; Defendants’ Reply Memorandum of Law in Further Support of Motion for Summary Judgment (“Defs.’ Reply”) [DE 37]. Plaintiffs oppose the motion. See generally Memorandum of Law in Opposition to the Defendants’ Motion for Summary Judgment (“Pls.’ Opp’n”) [DE 40]. For the reasons which follow, Defendants’ motion

for summary judgment is GRANTED. II. BACKGROUND A. Deficiencies in Plaintiffs’ Opposition As a preliminary matter, Defendants argue that Plaintiffs failed to properly respond to Defendants’ Rule 56.1 statement and, as a result, Defendants’ asserted facts should be deemed admitted. Defs.’ Reply at 1. Local Civil Rule 56.1(a) provides that “[u]pon 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, in numbered paragraphs, 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 may constitute grounds for denial of the motion.” Local Civil Rule 56.1(b) provides that “[t]he papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and

concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Although the moving Defendants complied with Local Rule 56.1(a) and submitted a statement of undisputed facts, Plaintiffs have not complied with Local Rule 56.1(b). See Defendants’ Rule 56.1 Statement of Material Facts (“Defs.’ SOMF”) [DE 36-1]. Plaintiffs submitted a “Counter Statement of Facts” which appears to be Plaintiffs’ own recitation of the facts and does not correspond with any of the paragraphs of Defendants’ Rule 56.1(a) statement. Nor does Plaintiffs’ submission address or respond to any of Defendants’ numbered paragraphs. See generally Plaintiffs’ Counter Statement of Facts (“Pls.’ CSOF”) [DE 39]. Defendants then filed a reply statement of facts which appended the Plaintiffs’ purported 56.1 statement to their

own to maintain consecutively numbered paragraphs. Defendants then responded to each of Plaintiffs’ assertions. Defendants’ Reply Statement of Material Facts (“Defs.’ Reply SOMF”) [DE 37-1]. The failure of Plaintiffs’ counsel to comply with the E.D.N.Y. Local Rules, and particularly Rule 56.1, is regrettable considering “the purpose of Rule 56.1 statements is to identify the relevant evidence supporting the material facts, and ‘to assist the court in determining which facts are genuinely undisputed.’” NAACP Legal Def. & Educ. Fund, Inc. v. U.S. Dep't of Hous. & Urban Dev., No. 07 CIV. 3378, 2007 WL 4233008, at *1 (S.D.N.Y. Nov. 30, 2007) (quoting Madison Maidens, Inc. v. Am. Mfrs. Mut. Ins. Co., No. 05 Civ. 4584, 2006 WL 1650689, at *2 (S.D.N.Y. June 15, 2006)). Local Civil Rule 56.1(c) is clear that “[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to

be served by the opposing party.” (emphasis added). There is no ambiguity in this provision. “Where the opposing party fails to provide a separate statement containing factual assertions, the Court is free to disregard any assertions made by the opposing party.” Myers v. Lennar Corp., No. 08-CV-2799 (JFB) (WDW), 2010 WL 5491112, at *1 n.1 (E.D.N.Y. Dec. 30, 2010) (citing Watt v. New York Botanical Garden, No. 98 Civ. 1095 (BSJ), 2000 WL 193626, at *1 n.1 (S.D.N.Y. Feb. 16, 2000)). However, “[a] district court has broad discretion to determine whether to overlook a party’s failure to comply with local court rules.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citing Wight v. Bankamerica Corp., 219 F.3d 79, 85 (2d Cir. 2000)). As a result of the failures of Plaintiffs’ counsel, the Court conducted its own independent

review of the record as well as the parties’ competing 56.1 Statements and the exhibits which each side has submitted. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (holding that a district court may “opt to ‘conduct an assiduous review of the record’ even where one of the parties has failed to file [ ] a statement [of fact]”) (quoting Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000)). From these documents, the Court references what it considers to be the undisputed facts -- those which are uncontroverted by admissible evidence. The Court will construe these facts in the light most favorable to the Plaintiffs as the non-moving party. Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008); Doro v.

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