McCABE v. CSX TRANSPORTATION INC

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Supreme Court, Appellate Division, Fourth Department, New York.

Michael McCABE, Plaintiff-Respondent, v. CSX TRANSPORTATION, INC., Defendant-Appellant.  (Appeal No. 1.)

Decided: March 17, 2006

PRESENT:  HURLBUTT, J.P., GORSKI, MARTOCHE, SMITH, AND HAYES, JJ. Anspach Meeks & Ellenberger LLP, Buffalo (John J. Jablonski of Counsel), for Defendant-Appellant. Collins, Collins & Donoghue, P.C., Buffalo (Patrick J. Donoghue of Counsel), for Plaintiff-Respondent.

 Plaintiff commenced this action seeking damages pursuant to the Federal Employers' Liability Act ( [FELA] 45 USC § 51 et seq.) for injuries he sustained while working as a conductor for defendant. Supreme Court erred in granting plaintiff's motion for partial summary judgment on the issue of defendant's liability and to strike the affirmative defense of contributory negligence.   FELA is not a strict liability statute but, rather, liability under the statute is based on negligence and is not based solely on the fact that an employee is injured (see Ellis v. Union Pac. R.R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. 572;  New York Cent. R.R. Co. v. Ambrose, 280 U.S. 486, 490, 50 S.Ct. 198, 74 L.Ed. 562;  Williams v. Long Is. R.R. Co., 196 F.3d 402, 406).   Although there “is a ‘more lenient standard for determining negligence and causation’ in a FELA action” (Pilarski v. Consolidated Rail Corp., 269 A.D.2d 821, 821, 702 N.Y.S.2d 485;  see Williams, 196 F.3d at 406), we conclude that plaintiff failed to meet his initial burden on the motion on the issues of defendant's liability and his contributory negligence by merely submitting eight pages from the transcript of his deposition testimony.   Because plaintiff failed to meet his initial burden, we do not consider the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

We therefore reverse the order in appeal No. 1, deny plaintiff's motion and reinstate the affirmative defense of contributory negligence.   In light of our determination, the appeal by defendant from the order in appeal No. 2 denying its motion for leave to renew its opposition to plaintiff's motion for partial summary judgment is dismissed as moot (see 55 Liberty St. Assoc. v. Garrick-Aug Assoc. Store Leasing, 255 A.D.2d 188, 681 N.Y.S.2d 17).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the second defense is reinstated.

MEMORANDUM: