Opinion
Otto M. Buerger, Jamaica, N.Y., for plaintiff Long Island Rail Road Company. Richard H. Stokes, New York City, of counsel.
John F. Finerty, New York City, for plaintiff Brooklyn Eastern District Terminal.
Hays, St. John, Abramson & Heilbron, New York City, for plaintiffs Bush Terminal Railroad Company and New York Dock Railway. Morris Shilensky, New York City, of counsel.
Gerald E. Dwyer, New York City, for defendant. Jerome H. Shapiro, John H. Colgren, New York City, of counsel.
BARTELS, District Judge.
This is the second motion by defendant The New York Central Railroad Company ('Central') for summary judgment pursuant to Rule 56, Fed.Rules Civ.Proc., 28 U.S.C.A., the first having been
denied because of defective papers. The primary issue involved is whether the establishment of a proposed off-track freight depot in Brooklyn within Central's New York terminal district to and from which it would provide truck service, is an extension of a 'line of railroad' within the meaning of § 1(18) and § 1(20) of the Interstate Commerce Act ('Act'), requiring a certificate of convenience and necessity pursuant to § 1(19) of the Act, 49 U.S.C.A. § 1(18-20). Previously this Court has held that it was within its jurisdiction to decide the applicability of § 1(18) to the project. For full discussion of the issues reference is made to Long Island Rail Road Company v. New York Central Railroad Company, 2 Cir., 1960, 281 F.2d 379, at page 384, where Judge Friendly said:
D.C., 26 F.R.D. 145.
D.C., 185 F.Supp. 673.
In this and similar cases the Interstate Commerce Commission has expressed itself by a construction of long standing that the establishment of such a depot is not an extension of a 'line of railroad'. This was the conclusion reached by the Court of Appeals in this case. While the Court stated that the purpose of requiring a certificate was to prevent waste on the part of carriers, it did not state that such a certificate was required upon these facts but held to the contrary. It appears as a matter of law that the establishment of this depot is not an extension of a line of railroad. This being so, it follows that this motion should be granted. However, assuming that this were not true and further that upon a showing that the establishment of the depot would result in a waste of resources of Central as well as a similar waste by other carriers, which would compel this Court to conclude that the undertaking was a § 1(18) project, then the Court would be required to determine whether there existed a genuine issue of a material fact. But this would seem to be a duplication of the proceedings which Congress apparently relegated to the Commission under 1(18). It is unnecessary to resolve this issue because, even under this hypothesis, plaintiffs' affidavits do not present a genuine issue of fact.
In support of its motion defendant submits an affidavit by an officer which describes
Central's services in the Brooklyn area in prior years at the Wallabout station and also by tractor-trailer service and which includes its tariff schedules for the trucking service to be extended to the new freight depot. The last paragraph of this affidavit reads as follows:
In their answering affidavits plaintiffs state, among other things which are irrelevant, that they do not know the amount of Central's capital expenditures nor the expenses of maintaining the facilities at the Jay Street depot. Although this action was commenced in June, 1960 and motions for summary judgment were made in October, 1960 and June, 1961, plaintiffs have apparently taken no steps to ascertain by deposition and discovery the actual state of facts. Their statement in answer to the above quoted portion of the moving affidavit, is at most a denial of information which was discoverable and which under the circumstances presented appears to be evasive. This is not sufficient to prevent the award of a summary judgment. See Cockrell v. A. L. Mechling Barge Lines, Inc., D.C.Tex. 1961, 192 F.Supp. 622; Engl v. Aetna Life Ins. Co., 2 Cir., 1943, 139 F.2d 469.
Accordingly, defendant's motion for summary judgment is granted.
Settle order within three days upon one day's notice.