Opinion
2012-05-3
Frederick BREADY et al., Appellants, v. CSX TRANSPORTATION, INC., Respondent, et al., Defendant. Brandon Harris et al., Appellants, v. CSX Transportation, Inc., Respondent, et al., Defendant.
Magavern Magavern Grimm LLP, Buffalo (Edward J. Markarian of counsel), and Collins, Collins & Donoghue, P.C. (Patrick J. Donoghue of counsel), for appellants in the first and second above-entitled actions. Mayer Brown LLP, Washington, D.C. (Dan Himmelfarb of counsel), and Goldberg Segalla LLP, Buffalo (John J. Jablonski of counsel), for respondent in the first and second above-entitled actions.
Magavern Magavern Grimm LLP, Buffalo (Edward J. Markarian of counsel), and Collins, Collins & Donoghue, P.C. (Patrick J. Donoghue of counsel), for appellants in the first and second above-entitled actions. Mayer Brown LLP, Washington, D.C. (Dan Himmelfarb of counsel), and Goldberg Segalla LLP, Buffalo (John J. Jablonski of counsel), for respondent in the first and second above-entitled actions.
MEMORANDUM:
The order of the Appellate Division in each case, insofar as appealed from, should be affirmed, with costs. Assuming without deciding that defendant CSX Transportation, Inc. owed plaintiffs a higher duty of care under the Federal Employer's Liability Act than under the common law, defendant made a prima facie showing that it did not breach that duty of care. Plaintiffs, in response, failed to establish that a triable issue of fact existed on the issue of breach of the duty of care. Accordingly, the Appellate Division properly granted defendant's motion for summary judgment dismissing the complaint in each case. Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
In each case: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.