Opinion
00-CV-7642 (ILG)
January 29, 2002
MEMORANDUM AND ORDER
Plaintiff Evan Bewry ("Bewry") brings this products liability action for alleged injuries he sustained when a tire, purportedly manufactured by defendant Bridgestone/Firestone, Inc. ("Firestone"), "blew out" while he was driving a passenger bus for the Peter Pan Bus Company. Firestone now moves for summary judgment, and has filed a Statement of Undisputed Facts pursuant to Local Rule 56.1 in support of its motion. Plaintiff has failed to file any opposition to the motion for summary judgment, despite having been served by hand with the movant's papers on December 7, 2001. Plaintiff's counsel was also served at that time with the briefing schedule for this motion, which required that opposition papers be served by hand on defendant's counsel by January 4, 2002. That briefing schedule was also later made part of Magistrate Judge Mann's Order of December 18, 2001. Plaintiff's counsel neither objected to the briefing schedule nor sought an extension of time to file opposition papers.
Having failed to file any opposition to the present motion, and, specifically, a Local Rule 56.1 Counter Statement, the Court must assume that plaintiff admits the material facts as stated in defendant's Local Rule 56.1 Statement. See Local Rule 56.1(c) ("All material facts set forth in the statement . . . will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.") Defendant's Local Rule 56.1 Statement states, in pertinent part, that there is no definitive proof that the subject tire was manufactured by Firestone; the tire has since been lost or destroyed; the make, model, size, and type of the subject tire has never been established; and other than six photographs of poor quality, there has been no preservation of evidence in this case. (See Local Rule 56.1 Statement ¶ 17.) As a result, none of the design features of the alleged tire or any of the manufacturing processes of the tire can be identified, and Firestone has been denied the ability to conduct a forensic analysis of the tire to determine whether any other possible causes for the tire's failure were involved. (Id.) Thus, according to a Firestone expert, Dennis F. Whalen, it is impossible to render any conclusions regarding the causes of the alleged tire failure. (Id.)
These material facts are undisputed by the plaintiff, and therefore based on these undisputed material facts, this Court determines that summary judgment is appropriate in this case. See Fed.R.Civ.P. 56 (e); see also Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001) (holding summary judgment may only be granted if appropriate, not simply because motion is unopposed).
CONCLUSION
For the foregoing reasons, the motion for summary judgment is granted and plaintiff's claims are dismissed in their entirety.