UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Argued: September 20, 2023 Decided: February 27, 2024)

Docket No. 22-1921-cv

JOHN KOWALCHUCK, Plaintiff-Appellant,

- against -

METROPOLITAN TRANSPORTATION AUTHORITY, Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

Before: WALKER, CHIN, and ROBINSON, Circuit Judges.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Brown, J.), granting summary judgment in favor of the defendant-appellee former employer in this personal injury action brought under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. Pursuant to the district court's individual rules, the employer requested a pre-motion conference to discuss its anticipated motion for summary judgment. The district court held a pre-motion conference and thereafter, deeming the motion to have been made, denied it, setting the matter down for trial. Two years later, and only four days before the scheduled start of trial, the district court sua sponte reconsidered and granted summary judgment to the employer, dismissing the complaint, without notice to the parties or an opportunity for the former employee to submit opposition.

VACATED AND REMANDED.

PHILIP DINHOFER, Philip J. Dinhofer LLC, Rockville Centre, New York, for Plaintiff-Appellant.

HELENE HECHTKOPF, Hoguet Newman Regal & Kenney, LLP, New York, New York (Jason D. Barnes, Metropolitan Transportation Authority, New York, New York, on the brief), for Defendant- Appellant.

CHIN, Circuit Judge:

In this case, plaintiff-appellant John Kowalchuck sued his former employer, defendant-appellee Metropolitan Transportation Authority (the

-2- "MTA"), under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., for injuries sustained while clearing snow at an MTA property. The MTA requested a pre-motion conference to discuss its anticipated motion for summary judgment. The district court granted the request. At the pre-motion conference, the district court deemed the MTA's motion as having been made and denied it. Two years later, and only four days before trial was set to begin and without notice to either party, the district court reconsidered its previous denial of the motion and granted summary judgment in favor of the MTA, dismissing the complaint. Kowalchuck was not given an opportunity to submit papers in opposition to the motion.

On appeal, Kowalchuck argues that the district court erred when it sua sponte reconsidered its denial of summary judgment and granted summary judgment to the MTA, without giving him notice or an opportunity to be heard. We agree. For the reasons set forth below, we VACATE and REMAND.

-3- BACKGROUND I. The Facts

As alleged in the complaint, 1 the facts may be summarized as follows: Kowalchuck was employed as a police officer by the MTA. On January 27, 2015, during a shift, Kowalchuck shoveled snow from an accessibility ramp at an MTA building. While pushing a shovel on the ramp to clear the snow, he hit a raised edge of a wooden plank. Kowalchuck felt a jolt