author: KEARSE, Circuit Judge:

text:
    ASSOCIATION OF INTERNATIONAL AUTOMOBILE MANUFACTURERS, INC., and American Automobile Manufacturers Association, Plaintiffs-Appellants, v. Robert ABRAMS, as Attorney General of the State of New York, and Patricia B. Adduci, as Commissioner, Department of Motor Vehicles, Defendants-Appellees.
    No. 710, Docket 94-9306.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 20, 1995.
    Decided May 23, 1996.

      Kenneth W. Starr, Washington, DC (Paul T. Cappuccio, Kirkland & Ellis, Washington, DC, Michael Hoenig, Daniel V. Gsovski, Herzfeld & Rubin, New York City, Richard A. Cordray, Grove City, Ohio, on the brief), for Plaintiffs-Appellants.
    Rosalie J. Hronsky, Assistant Attorney General, New York City (Dennis C. Vacco, Attorney General of the State of New York, New York City, on the brief), for Defendants-Appellees.
    Public Citizen Litigation Group, Washington, DC (David C. Vladeck, Washington, DC, of counsel), for Amici Curiae Public Citizen, Inc., Consumers Union of United States, The Center for Auto Safety, and New York Public Interest Research Group in support of Appellees.
    Before: KEARSE, MAHONEY, and PARKER, Circuit Judges.
   KEARSE, Circuit Judge:

Plaintiffs Association of International Automobile Manufacturers, Inc., and American Automobile Manufacturers Association (collectively “ALA”) appeal from a final judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing their complaint against officials of the State of New York (“State”), challenging the validity of § 416-a of the New York Vehicle and Traffic Law (McKinney 1986 & Supp.1995), which, inter alia, requires automobile manufacturers to affix to each new passenger vehicle a label stating the maximum speed at which the vehicle’s bumpers suffer only minimal damage upon impact (“New York bumper statute” or “New York statute”). ALA contended that the New York bumper statute is preempted by federal law, that it burdens interstate commerce in violation of the Commerce Clause of the Constitution, and that it is so vague as to violate the Due Process Clause. The district court rejected these contentions and granted summary judgment in favor of defendants. ALA pursues its contentions on appeal. For the reasons that follow, we conclude that there are genuine issues of fact as to the preemption and Commerce Clause claims and that summary judgment dismissing those claims was inappropriate. Accordingly, we vacate and remand for further proceedings.

I. BACKGROUND

The present action centers principally on the requirements imposed on passenger vehicle manufacturers by the New York bumper statute, in comparison to those imposed by federal law as reflected in two statutes, to wit, the National Traffic and Motor Vehicle Safety Act of 1966 (the “Safety Act”), 49 U.S.CA. §§ 30101-30169 (West 1995), and the Motor Vehicle Information and Cost Savings Act of 1972 (the “Cost Savings Act”), 49 U.S.CA. §§ 32101-33118 (West 1995) (collectively “the federal Acts”), with respect to damage sustained by the vehicle’s bumpers in a simulated collision.

The New York bumper statute, enacted in 1992, prohibits, inter alia, the sale or lease of any new passenger vehicle unless there is affixed to the vehicle a “bumper quality label” that states as follows:

This vehicle is equipped with a front bumper that has been tested at an impact speed of (specified by vehicle manufacturer) _miles per hour and a rear bumper that has been tested at an impact speed of (specified by the vehicle manufacturer) _miles per hour, and has sustained no damage to the vehicle’s body and minimal damage to the bumper and attachment hardware. Minimal damage to the bumper means damage that can be repaired with the use of a [sic] common repair materials and without replacing any parts. The stronger the bumper, the less likely the car will require repair after a low-speed collision.

N.Y. Vehicle & Traffic Law § 416-a(l) (emphasis added). “[IJtnpact speed” is defined as

the maximum speed of impart upon the bumper of the vehicle at which the vehicle sustains no damage to the body and safety systems and only minimal damage to the bumper when subjected to the fixed barrier and pendulum impact tests, and when subjected to the comer impact test at not less than sixty percent of that maximum speed, conducted pursuant to the practices, procedures and regulations promulgated under the concurrent authority of the [Safety Act and the Cost Savings Act.]

Id. § 416-a(2) (emphases added). Violation of these provisions subjects a manufacturer to a civil fine of up to $50 per vehicle. Id. § 416-a(4).

As discussed in greater detail in Part IIA below, the Safety Act and Cost Savings Act require the Secretary of Transportation (“Secretary”) to promulgate standards regarding the safety, performance, and cost to insure passenger vehicles. The federal Acts also provide that state law is preempted to the extent that it is not identical to certain standards set by the federal Acts.

On the day before the New York bumper statute was to become effective, ALA commenced the present action, alleging that the New York statute is constitutionally invalid on the grounds (1) that it imposes on manufacturers standards that are inconsistent with those imposed by the Safety Act and the Cost Savings Act, and hence is expressly and impliedly preempted by the federal Acts; (2) that it impermissibly burdens interstate commerce because (a) manufacturers will be penalized under the statute when vehicles initially ordered by dealers outside of New York are later sold or leased in New York, (b) the need for extensive and expensive testing may influence the design of cars sold nationally, and, (c) other states may be prompted to adopt their own disclosure laws and create a disuniformity of regulation; and, (3) that the statute is impermissibly vague in that it (a) fails to specify the speeds at which testing must be conducted and (b) fails to define the terms “safety systems” and “common repair materials.” The State deferred enforcement of the statute during the pendency of this suit in the district court. Both sides moved for summary judgment.

In an opinion reported at 867 F.Supp. 248 (1994), the district court rejected all of AIA’s contentions and granted summary judgment in favor of the State. The court rejected the claim of express preemption on the ground that the New York bumper statute requires only information disclosure and that the federal Acts’ express preemption provisions cover not disclosure but rather standards of performance:

The New York Statute in no way concerns itself with these federal definitions, it identifies neither a minimum standard for motor vehicle performance, nor a minimum performance standard, but instead requires car manufacturers to disclose to consumers the maximum speed at which a vehicle’s front and rear bumpers can be impacted and “sustain[ ] no damage to the vehicle’s body and minimal damage to the bumper and attachment hardware.” Although it is quite probable that, as a result of the Statute, manufacturers will attempt to establish performance of bumpers on their vehicles about which they can boast, such activity would result from nothing more than the demands of the marketplace.

867 F.Supp. at 253-54 (quoting New York statute; other internal quotation marks omitted). The court rejected AIA’s implied preemption claim, noting that judicial discretion to consider such a claim is limited:

[T]he Supreme Court has recently placed limits on the discretion of lower courts to entertain implied preemption claims.... In Cipollone v. Liggett Group, Inc. (1992) [505 U.S. 504, 517], 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 the Court held:
When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of the legislation.... [Internal citation and quotation marks omitted by district court.]
The Second Circuit, in Toy Mfrs. of America, Inc. v. Blumenthal (2d Cir.1992) 986 F.2d 615, 623-24, clarified that holding (emphasis in original):
It is true that where a preemption provision provides a “reliable indicium of congressional intent” a court is required to restrict its preemption analysis to the terms of that clause. However, a finding of implied preemption (which enlarges a field of preemption beyond what is covered by an express provision) is not automatically foreclosed by the existence of a preemption clause....

867 F.Supp. at 254. The court found that the “Congressional intent expressed in the preemption provisions of the [federal Acts] is unambiguous” and stated that “[it] need not determine whether the New York Statute is impliedly preempted.” Id.

The court also rejected AIA’s claim that the New York statute impermissibly burdens interstate commerce, finding no evidence that manufacturers would suffer any hardship from the statute’s requirements as to labeling. It stated that any impetus for manufacturers to change their vehicle designs would come only from the nature of competition, for the statute itself imposes no design requirements:

None of [AIA’s] alleged effects create any “excessive burden.” Plaintiffs have not — and cannot — make a showing that any hardship results from requiring manufacturers to remove or apply the labels required under the Statute when cars are leased or sold in a different state from that for which they were originally ordered. Plaintiffs’ second and third hardship arguments are similarly unavailing. The Statute does not require motor vehicles to meet any design requirements at all; nor ... has it created any standards which might conflict in the future with similar laws enacted by other states. In brief, plaintiffs’ commerce clause claim suffers from the same infirmity as their preemption claim: It fails to recognize that the Statute does not create performance standards for bumpers but simply requires manufacturers to inform consumers about the bumper performance of their vehicles. Any action taken by manufacturers to present consumers with more attractive figures about such performance cannot be attributed to the Statute, but only to the very nature of competition.

Id. at 256 (emphasis in original).

The district court rejected AIA’s claim that the New York statute is impermissibly vague, finding the meanings of the challenged terms facially quite clear:

[W]e find that no rational person would be confused by the provision that “minimal damage to the bumper means damage that can be repaired with the use of [sic ] common repair materials and without replacing any spare [sic ] parts.” It would also seem to us that “safety systems” simply means anything in the vehicle’s mechanism designed to increase the safety of its operations. After all, the word “safety” is neither esoteric nor uncommonly used.
Plaintiffs’ concern with the Statute’s failure to specify the speeds at which they must test their vehicles is similarly unfounded. The Statute requires the manufacturer to disclose “the maximum speed of impact ... at which the vehicle sustains no damage to the body and safety systems and only minimal damage to the bumper.” In light of the purpose of the Statute — to enhance consumer knowledge — it is obvious to us that the legislature intended each manufacturer to determine for itself what maximum to claim to be safe and then to hold it responsible should it turn out that it overstated that speed.

Id. at 255-56. The district court concluded that the challenged portions of the New York statute are “an illustration of legislative clarity.” Id. at 255.

This appeal followed.

II. DISCUSSION

On appeal, AIA pursues its preemption, Commerce Clause, and due process contentions. We conclude that further proceedings are required with respect to the claims that the New York statute is preempted and imposes an undue burden on commerce.

A. Preemption

Whenever the federal government has the authority to regulate a given area, Congress may exercise that power so as to preclude states from asserting authority over the same subject matter. See generally L. Tribe, American Constitutional Law § 6-25 (1988). “[T]he Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state laws that ‘interfere with, or are contrary to,’ federal law.” Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824)); National Fuel Gas Supply Corp. v. Public Service Commission of the State of New York, 894 F.2d 571, 575-76 (2d Cir.), cert. denied, 497 U.S. 1004, 110 S.Ct. 3240, 111 L.Ed.2d 750 (1990). Such preemption may be express or implied.

Express preemption occurs to the extent that a federal statute expressly directs that state law be ousted to some degree from a certain field. See, e.g., Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309-10, 51 L.Ed.2d 604 (1977); Motor Vehicle Manufacturers Association of the United States, Inc. v. Abrams, 899 F.2d 1315, 1318-19 (2d Cir.1990), cert. denied, 499 U.S. 912, 111 S.Ct. 1122, 113 L.Ed.2d 230 (1991). Where there is such an express clause defining a law’s preemptive reach, application of the interpretive principle of expressio unius est exclusio alterius may warrant the conclusion that Congress did not intend to preempt matters beyond the clause’s explicit scope. Where an express clause is a reliable indici-um of congressional intent, preemption is restricted to the terms of that provision. See Vango Media, Inc. v. City of New York, 34 F.3d 68, 72 (2d Cir.1994); Toy Manufacturers of America, Inc. v. Blumenthal, 986 F.2d 615, 623-24 (2d Cir.1993).

Even where there is no express statutory statement ousting state law from a given area, there may be implied preemption.

[A] federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, ... or when state law is in actual conflict with federal law. We have found implied conflict pre-emption where it is impossible for a private party to comply with both state and federal requirements, ... or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Freightliner Corp. v. Myrick, — U.S.-, -, 115 S.Ct. 1483, 1487, 131 L.Ed.2d 385 (1995) (internal quotation marks omitted); see, e.g., Campbell v. Hussey, 368 U.S. 297, 300-02, 82 S.Ct. 327, 328-30, 7 L.Ed.2d 299 (1961) (field preemption); Michigan Canners & Freezers Association v. Agricultural Marketing & Bargaining Board, 467 U.S. 461, 469, 104 S.Ct. 2518, 2522-23, 81 L.Ed.2d 399 (1984) (conflict preemption); Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941) (obstacle preemption). In Freightliner Corp. v. Myrick, decided after the district court’s opinion herein, the Supreme Court noted that the inclusion in a federal statute of an express provision regarding preemption does not necessarily foreclose the possibility that aspects of a state law not expressly within the federal preemption provision may be preempted by implication. See — U.S. at-, 115 S.Ct. at 1487-88 (discussing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)).

In the present ease, we conclude that summary judgment was inappropriate with respect to AIA’s claims of preemption. The Safety Act provides that the Secretary is to promulgate “motor vehicle safety standards”, 49 U.S.C. § 30111(a), which is defined as a “minimum standard for motor vehicle or motor vehicle equipment performance,” 49 U.S.C. § 30102(a)(9), designed to “proteet[] the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk of death or injury in an accident,” id § 30102(a)(8). The stated purpose of the Cost Savings Act is to “reduce economic loss resulting from damage to passenger motor vehicles involved in motor vehicle accidents by providing for the maintenance and enforcement of bumper standards.” Id. § 32501. Under the concurrent authority of these two statutes, the National Highway Traffic Safety Administration (“NHTSA”) is empowered to prescribe standards of vehicle performance and to require disclosure of vehicle information. See, e.g., 49 C.F.R. §§ 1.50(a) and (f) (authority of Secretary delegated to NHTSA). NHTSA is to seek to achieve the economic objectives of the Cost Savings Act without sacrificing the Safety Act’s safety objectives. See 49 U.S.C. § 32502(b)(1).

Consistent with the Cost Savings Act’s stated purpose of reducing economic loss resulting from collision damage to passenger vehicles “by providing for the maintenance and enforcement of bumper standards,” 49 U.S.C. § 32501, NHTSA is to formulate “bumper standards,” with the goal of obtaining the “maximum feasible reduction of costs to the public,” id. § 32502(d). “[Bjumper standard” is defined as

(1) ... a minimum performance standard that substantially reduces—
(A) the damage to the front or rear end of a passenger motor vehicle from a low-speed collision ... or from towing the vehicle; or
(B) the cost of repairing the damage.

Id. §§ 32101(1)(A) and (B). Accordingly, NHTSA promulgated a standard for bumper performance, see 49 C.F.R. §§ 581.1 to 581.7 (the “Part 581 Bumper Standard” or “federal standard”), which provides, inter alia, as follows:

(a) Each vehicle shall meet the damage criteria of §§ 581.5(c)(1) through 581.5(c)(9) when impacted by a pendulum-type test device in accordance with the procedures of § 581.7(b), under the conditions of § 581.6, at an impact speed of 1.5 m.p.h., and when impacted by a pendulum-type test device in accordance with the procedures of § 581.7(a) at 2.5 m.p.h., followed by an impact into a fixed collision barrier that is perpendicular to the line of travel of the vehicle, while traveling longitudinally forward, then longitudinally rearward, under the conditions of § 581.6, at 2.5 m.p.h.

49 C.F.R. § 581.5(a). The “damage criteria” set out in 49 C.F.R. §§ 581.5(c)(1) through 581.5(c)(6) provide that after the impact test the following automotive parts must essentially remain intact and operational: (1) lamps and reflective devices, (2) hood, trunk, and doors, (3) fuel and cooling systems, (4) exhaust system, (5) propulsion, suspension, steering, and braking systems, and (6) impact absorption systems. Section 581.5(c)(7) limits the force with which the tested vehicle may touch the test device. The two remaining “damage criteria” referred to in § 581.5(c) provide as follows:

(8) The exterior surfaces shall have no separations of surface materials, paint, polymeric coatings, or other covering materials from the surface to which they are bonded, and no permanent deviations from their original contours 30 minutes after completion of each pendulum and barrier impact, except where such damage occurs to the bumper face bar and the components and associated fasteners that directly attach the bumper face bar to the chassis frame.
(9) Except as provided in § 581.5(c)(8), there shall be no breakage or release of fasteners or joints.

49 C.F.R. §§ 581.5(c)(8) and (9) (emphasis added).

Both the Safety Act and the Cost Savings Act contain preemption provisions. The Safety Act provides that:

_ (1) When , a motor vehicle safety standard is in effect under this chapter, ... a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter....
(2) A State may enforce a standard that is identical to a standard prescribed under this chapter.

49 U.S.C. §§ 30103(b)(1) and (2). The Cost Saving Act’s counterpart similarly provides that “a State may prescribe or enforce a bumper standard ... only if the standard is identical to a standard prescribed under section 32502 of this title.” Id. § 32511(a). Since the Part 581 Bumper Standard is, at least in part, both a “motor vehicle safety standard” within the meaning of the Safety Act and a “bumper standard” within the meaning of the Cost Savings Act, see generally, Center for Auto Safety v. Peck, 751 F.2d 1336 (D.C.Cir.1985) (Scalia, J.), it falls within the coverage of both federal Acts’ preemption provisions.

Comparing the New York bumper statute against these federal regulations, we conclude that there is at least an issue of fact as to whether the requirements imposed by the former are identical to those imposed by the latter. As to bumpers, the federal standard requires only that a bumper be sturdy enough that, when tested as specified in the federal regulation at impact speeds of 1.5 m.p.h. and 2.5 m.p.h., no appreciable damage is sustained by parts of the vehicle other than the bumper fasteners and bumpers. The express exception stated in 49 C.F.R. §§ 581.5(8) and (9) for “such damage [as] occurs to the bumper” plainly exempts bumpers from the federal damage limitation. In sum, under the federal standard the interests of safety and cost-control are considered properly balanced if, in a low-speed collision, all appreciable damage to the car is sustained by the bumper; it is permissible for the bumper itself to be destroyed.

The New York bumper statute, on the other hand, appears to require that at some unspecified impact speed the bumper itself must suffer no more than minimal damage. That statute requires the manufacturer to state that “at an impact speed of (specified by vehicle manufacturer) _ miles per hour, [the vehicle] has sustained ... minimal damage to the bumper_” N.Y. Vehicle & Traffic Law § 416-a(l). Though the State has at times suggested that this imposes no substantive performance burden on the manufacturer because the manufacturer can simply fill in “zero,” that rationale is belied by the language of the statute itself. If the “speed” were zero, movement would be nonexistent and there could not be any “impact.” Thus, the very term “impact speed” is meaningless at a “speed” of zero.

Further, the New York statute itself defines “impact speed” as the “maximum speed” at which the bumper suffers minimal damage. Id. § 416-a(2) (emphasis added). We doubt that it could be said as a matter of fact, and it certainly could not be said as a matter of law, that there is no speed, however slow, at which a bumper can be impacted and suffer minimal damage. The statute thus appears to impose on the manufacturer an obligation to provide a bumper that resists more than minimal damage at some speed.

AIA’s contention that the New York statute was intended to impose the substantive requirement that a car’s bumper be able to withstand impact with only minimal damage at some speed greater than zero is supported by, inter alia, a preenactment letter from the State’s Attorney 'General to its Governor, urging the Governor to approve the legislation. Though the Attorney General stated that “[t]he proposed [statute] would not require auto manufacturers to install stronger bumpers on their new cars,” he plainly did not imply that a manufacturer could enter “zero” on the required label, as he stated that the new law would require disclosure of, inter alia, “the speed at which a car’s bumpers can sustain a low speed collision with minimal damage to the bumpers.” (Memorandum of the Attorney General to ,the Governor, July 16, 1992, at 1 (“Attorney General’s Memorandum”) (emphasis added).)

AIA’s contention is further supported by a postenactment statement by New York’s Department of Motor Vehicles which, in proposing State regulations implementing the New York bumper statute, noted expressly that the New York statute “is inconsistent with the federal regulation” because the New York statute requires that testing must result in no more than minimal damage to the bumper:

The proposed [New York] regulation is consistent with the [New York] statute but the [New York] statute is inconsistent with the federal regulation. Under the federal system, the bumper and attachment hardware may be damaged or destroyed in the testing but the vehicle passes if the vehicle body and safety equipment (such as lights) are not damaged. The [New York] statute does not allow for this type of damage.

Department of Motor Vehicles, Emergency/Proposed Rulemaking, New York State Register at 11 (January 27, 1993) (emphasis added).

In addition to apparently requiring that there be some speed at which the impacted bumper sustains only minimal damage, the New York statute plainly imposes the requirement that the maximum speed at which that is true be tested. The mandated label expressly refers to a front or rear “bumper that has been tested.” N.Y. Vehicle & Traffic Law § 416-a(l). And whether or not the bumper sustained more than minimal damage when tested at 2.5 m.p.h., i.e., the top testing speed required by the federal regulation, the terms of the New York statute would appear to require further testing, for the manufacturer would not yet have determined what is the “maximum” speed at which the bumper suffers only minimal damage. Further, though the district court viewed the New York statute as merely meaning to “hold [a manufacturer] responsible should it turn out that it overstated that speed,” 867 F.Supp. at 256 (emphasis added), there is evidence that the State intended that a manufacturer also not understate the maximum speed by simply filling in on the label the top federal testing speed. New York’s Governor, in approving the statute, stated that one of its goals was to help consumers, with respect to “the quality of a vehicle’s bumper[,] ... to determine to what extent vehicles exceed th[e] minimal [federal] requirement.” (Governor’s Memorandum Filed with Assembly Bill Number 6212-A, August 7, 1992, at 1 (emphasis added).) Plainly the Governor envisioned tests in addition to those required by federal law.

After passage of its statute, the State obtained an opinion from NHTSA’s Acting Chief Counsel that the statute imposes no performance requirement for bumpers:

The New York statute does not specify any minimum performance requirements for bumpers. Rather, it requires auto manufacturers to attach a label containing information about how their bumpers performed when tested in a particular manner. Thus, the New York statute neither establishes nor enforces a “bumper standard” within the meaning of the Cost Savings Act or a “motor vehicle safety standard” within the meaning of the Safety Act. Therefore, in our view, that statute is not expressly preempted by either [of the Acts’ express preemption clauses],

(Letter of John Womack, Acting Chief Counsel of NHTSA, to Congressman Charles E. Schumer, March 8, 1994, at 2.) That opinion is in conflict with the 1992 statements by the Attorney General and the Governor and with the 1993 analysis by the Department of Motor Vehicles, all of which reveal that the State meant to require some minimum standard of performance.

We also note that at the oral argument of this appeal, the Assistant Attorney General, though arguing that a manufacturer could insert “zero” as the maximum speed at which a bumper suffers no more than minimal damage, made statements as to what the State would “permit” which seemingly contradicted the zero-maximum notion. She stated, inter alia:

[w]e’re not going to be arbitrary, ... we’re going to allow incremental testing that — if it fails at .5 or 1, and they don’t want to do any more testing, we’ll try to be reasonable about the increments that we’ll permit.
They can test at whatever increments they want to test at or we think they need to test at....
... [i]f they test at reasonable increments, in an enforcement challenge— where — we would permit — we’re not going to say you have to test at every single increment; we would permit them some latitude and try to be reasonable. If they came to us and said that they tested at .5, ... we would permit that.

In sum, though the New York statute does not state a specific minimum performance requirement, it seems quite likely that some minimum level of performance is required. Thus, the statute appears to require that cars sold in New York must be capable of suffering no more than minimal damage at some speed, whereas the federal Acts permit more than minimal damage to the bumpers so long as other parts do not sustain damage. With the record viewed in this light, it is difficult not to conclude that the New York statute creates a bumper standard that is preempted by the federal Acts. Summary judgment in favor of the State was plainly inappropriate.

This does not, however, lead us to the conclusion that, on the present record, summary judgment should have been granted in favor of plaintiffs. The fact that both sides have moved for summary judgment does not necessarily mean that summary judgment may properly be granted for either side. See, e.g., Eastman Machine Co. v. United States, 841 F.2d 469, 473 (2d Cir.1988). “Rather, the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Schwabenbauer v. Board of Education, 667 F.2d 305, 314 (2d Cir.1981); see also Abrams v. United States, 797 F.2d 100, 103 (2d Cir.1986).

In the present case, though the syntax of the State statute differs from that of the federal Acts, it is possible that the State standard, as interpreted by the State, will not differ from the federal Acts in practical effect. For example, crediting the view of Womack that the State statute does not impose a performance standard and the representation of the Assistant Attorney General that a manufacturer may permissibly insert “zero” on the State-required label, one could conclude that the New York statute does not establish a minimum performance standard for bumpers. Thus, it is possible that, as applied by the State, the State standard will, as a practical matter, be identical to the federal standard. The precise meaning of the New York- statute remains unclear. We conclude that it is appropriate for the district court to permit whatever factual development it sees fit in order to determine the contours of the New York statute and to make the determination as to whether that statute has been expressly preempted. If upon further disclosures by the State, it appears that no rational factfinder could fail to conclude that the State statute creates a bumper performance standard different from that created by the federal Acts, the district court should grant summary judgment in favor of plaintiffs.

Finally, though the district court opined that “[it] need not determine whether the New York Statute is impliedly preempted,” 867 F.Supp. at 254, we note that there may well be some question as to whether the Cost Savings Act impliedly preempts the New York statute’s requirement that bumper damage be tested. Though the district court held that the New York statute imposes only a disclosure requirement, the information that must be disclosed is not data for which the federal statute requires testing because bumpers are expressly excepted from the federal limitations on damage. Thus, the New York statute imposes a testing requirement that adds to the requirements of federal law and presumably will impose some cost on manufacturers in addition to the cost of complying with the federal regulation. Since (a) the goal of bumper regulation under the Cost Savings Act is to reduce consumer costs, (b) as discussed in Part II.B. below, the cost of testing may well be substantial, and (c) there can be little doubt that manufacturer costs will be passed on to the consumer, it is at least arguable that the testing of bumpers is either part of a field that Congress clearly intended to occupy, to the exclusion of the states, or that state requirements for testing of bumpers will so increase consumer costs as to constitute an obstacle to § 32502(d)’s goal of “obtain[ing] the maximum feasible reduction of costs to the public.” These implied preemption questions remain open for exploration on remand.

B. Impermissible Burden on Interstate Commerce

With respect to AIA’s Commerce Clause claim, we note preliminarily that the district court’s analysis rested in large part on its view that the New York statute imposes no substantive performance requirement and that the commerce claim therefore suffered the “same infirmity” as the preemption claims. Since we conclude, as discussed above, that summary judgment dismissing the preemption claims was inappropriate, the summary dismissal of the Commerce Clause claims was, to that extent, likewise inappropriate.

We also note the existence of other questions of fact to be resolved with respect to AIA’s contention that the New York bumper statute impermissibly burdens commerce. If state regulation, though not distinguishing between articles of commerce on the basis of their domestic or out-of-state origins, affects interstate commerce, the regulation will not be found to burden commerce impermissibly unless, on balance, the detriments to interstate commerce clearly outweigh the benefits to legitimate local public interests:

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.

Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); see also Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 36-37, 100 S.Ct. 2009, 2015-16, 64 L.Ed.2d 702 (1980); Hughes v. Oklahoma, 441 U.S. 322, 331, 99 S.Ct. 1727, 1733-34, 60 L.Ed.2d 250 (1979).

In the present case, there are factual questions on both sides of the scales. The legislative history of the New York bumper statute indicates that the legislators sought to make available to consumers information that would allow them intelligently to compare vehicles with respect to safety, repair costs, and insurance costs. For example, one of the statute’s sponsors stated:

Specifications regarding the strength of a vehicle bumper on impact can be a major criterion for many consumers who are safety conscious and would like to have this information available to them at the time of purchase.

(Memorandum in Support dated July 16, 1992, by Assemblyman Ivan C. Lafayette and Senator Serphin R. Maltese, at 1.) Similarly, the State Attorney General urged the Governor to approve the statute on the grounds, inter alia, that

a stronger bumper will reduce the likelihood that the car will require expensive repairs after a low speed collision. Thus, this bill could help to contain insurance costs, because the cost of repairs is factored into the determination of insurance premiums for property damage liability coverage. Consumers also commonly now agree to assume higher insurance deductible costs when accidents occur.

(Attorney General’s Memorandum at 2.) The New York bumper statute itself requires that the label state that “[t]he stronger the bumper, the less likely the car will require repair after a low-speed collision.” N.Y. Veh. & Traf. L. § 416-a(l).

Yet, the validity of the legislative assumptions that a stronger bumper will mean less damage and lower insurance premiums is debatable. For example, ALA submitted an affidavit from an automotive engineer stating that the notion that stronger bumpers will decrease costs is superficial because (a) stronger bumpers increase a car’s weight, thereby generally increasing exhaust emissions and decreasing fuel economy, and (b) “some bumper impacts have resulted in unusually expensive repairs even though the bumper system itself was not damaged....” (Affidavit of Dean M. Bayer, Supervisor, Product Engineering Test Laboratories, Inland-Fisher Guide Division of General Motors Corporation, February 1, 1993 (“Bayer Aff.”), ¶ 22.)

Moreover, NHTSA itself has repeatedly considered implementing bumper-information disclosure requirements and has consistently declined to do so, finding that for consumers attempting to compare insurance and accident-repair costs, bumper-capability information is of little, if any, value. For example, a NHTSA study of insurance rate structures conducted from June 1974 through January 1976 produced the conclusion

that “... premium rates are not influenced to any great degree by vehicle damage susceptibility or safety characteristics. Although it may be economically logical that a degree of cost savings (via premium reduction) could be applied to those vehicles having superior characteristics, the current premium structure would minimize the effect of those vehicle related characteristics since premiums are primarily influenced by driver and geographical factors in addition to the price of the car.”

55 Fed.Reg. 24,284, 24,287 (June 15, 1990) (NHTSA denial of petition for rulemaking (quoting Development of Vehicle Rating Systems for Automobile Consumer Information Study, General Electric Co., March 1976, DOT-45 — 4-00903)). NHTSA studies “between 1985 and 1987 to develop an effective consumer information program on the dam-ageability of new car bumper systems, which would provide consumers with comparative bumper cost information related to vehicle purchasing decisions” similarly “failed to produce a consistent positive correlation between damage induced in laboratory bumper tests and insurance accident repair costs.” Id. at 24,288. In 1990, NHTSA again considered imposing bumper information-disclosure requirements but elected not to do so, finding, inter alia, that new data confirmed its earlier conclusions that there is “not ... a consistent positive correlation between damage induced in laboratory bumper tests and insurance accident repair costs”; that “premium rates are not influenced to any great degree by vehicle damage susceptibility”; and that “specific components, such as bumpers, do not significantly affect the premium costs of auto insurance.” Id. at 24,284. The NHTSA studies and the engineer’s affidavit thus reveal substantial questions as to whether in fact significant benefits are created by the New York bumper statute.

There also are genuine issues as to the degree of the burden on manufacturers resulting from the required testing. AIA submitted affidavits from manufacturers to the effect that compliance with the statute annually would cost each major manufacturer hundreds of thousands of dollars. (See, e.g., Bayer Aff. ¶¶ 16, 20 (tests by General Motors to determine the speeds to be inserted in the labels would take more than 145 eight-hour shifts and cost more than $15,000 per model tested); Affidavit of Michael E. Klima, Design Analysis Manager, Toyota Motor Sales, U.S.A., Inc., February 2, 1993, at ¶ 15 (for Toyota, labor expenses of at least $300,000, plus the cost of the test vehicles); Affidavit of Michael Love, Compliance Manager for Porsche Cars North America, Inc., February 2, 1993, at ¶ 7 (for Porsche, at least $25,000 for each of four models).)

On the other hand, the State submitted an affidavit by the President of the Insurance Institute for Highway Safety stating that “[t]o minimize manufacturers’ costs to comply with [the New York bumper statute] attributable to vehicle testing, the Institute is prepared to conduct such testing on vehicles supplied by the manufacturers ... at no cost to the manufacturers.” (Affidavit of Brian O’Neill, July 23,1993, at ¶ 20.) Whether this would be a viable procedure and whether costs could thereby be significantly decreased is unclear. The resolution of that question is, on the present record, inappropriate for summary judgment.

Since there are genuine factual issues as to both the claimed burdens and the putative benefits created by the New York bumper statute, we remand for further development of the record in order to permit the district court to apply the Pike v. Bruce Church balancing test.

C. Vagueness

We are not persuaded by AIA’s contention that the New York bumper statute is impermissibly vague. The clarity of a statute that does not involve First Amendment freedoms is to be evaluated on an “as applied” basis. See, e.g., United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319-20, 46 L.Ed.2d 228 (1975); United States v. National Dairy Products Corp., 372 U.S. 29, 33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963); United States v. Whittaker, 999 F.2d 38, 42 (2d Cir.1993). A civil statute is not impermissible under this standard unless its commands are “so vague and indefinite as really to be no rule or standard at all.” Boutilier v. INS, 387 U.S. 118, 123, 87 S.Ct. 1563, 1566, 18 L.Ed.2d 661 (1967) (internal quotation marks omitted). The degree of vagueness permitted varies with the nature of the enactment and the correlative needs for notice and protection from unequal enforcement. See, e.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 1193-94, 71 L.Ed.2d 362 (1982); Textile Workers Pension Fund v. Standard Dye & Finishing Co., 725 F.2d 843, 855 (2d Cir.), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 856 (1984).

In the context of commercial regulation, “courts have consistently upheld the use of phrases which on their face are not particularly descriptive” such as “so far as practicable, and, where feasible,” “fair and open competition,” “shortest practicable route,” “other due and sufficient cause,” “near proximity,” and “unreasonably low prices.” Id. at 855-56 (internal quotation marks omitted). “[BJusi-nesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. at 498, 102 S.Ct. at 1193 (footnote omitted).

AIA contends that the New York bumper statute is impermissibly vague (1) because it does not specify the speed increments at which testing must be conducted to determine “maximum speed of impact,” and (2) because it does not define the terms “safety systems” in § 2 and “common repair materials” in § 1. As discussed in Parts II.A. and II.B. above, the contours of the maximum-speed requirement remain to be explored on remand in connection with consideration of AIA’s preemption and Commerce Clause claims and need not be separately addressed here. As to the terms “safety systems” and “common repair materials,” we cannot conclude that they are void as applied for the statute was not enforced while the litigation was pending in the district court and there is no evidence as to these terms as applied. Nor is it apparent that they will not be construed by the State in a way that permits compliance and even-handed enforcement. For example, the State has taken the posi-. tion that the term “safety systems” in § 2 of the New York statute refers only to automotive features set out in the federal standards. And we agree with the district court that automobile manufacturers should be able to fathom the meaning of “common repair materials” in the context of automobile repairs. Though it is possible that future events may raise constitutional problems as to the meaning of the statute, any such problems may be considered if and when they arise.

CONCLUSION

For the foregoing reasons, the judgment of the district court is vacated and the case is remanded for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

author: MESKILL, Circuit Judge:

license: Public Domain

text:
    Ronald HAYES, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF CORRECTIONS, Captain James M. Grillo, Captain Deborah Sutton, Assistant Deputy Warden Howard Robertson, in their personal and professional capacities as employees of the New York City Department of Corrections, Defendants-Appellees.
    No. 1169, Docket 95-2625.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 28, 1996.
    Decided May 24, 1996.

      Jeffrey G. Bullwinkel, New York City (Joseph F. Tringali, and Karla A Cohen, Simpson Thacher & Bartlett, New York City, of counsel), for Appellant.
    Helen P. Brown, Office of the Corporation Counsel of the City of New York, New York City (Paul A Crotty, Corporation Counsel of the City of New York, and Kristin M. Hel-mers, Office of the Corporation Counsel, New York City, of counsel), for Appellees.
    Before VAN GRAAFEILAND, MESKILL and WINTER, Circuit Judges.
   MESKILL, Circuit Judge:

Plaintiff-appellant Ronald Hayes appeals from a decision of the United States District Court for the Southern District of New York, Martin, /., granting the defendants’ motion for summary judgment and dismissing appellant’s Eighth Amendment claims as to all defendants. We conclude that the district court erred in excluding portions of appellant’s deposition testimony and in concluding that the protective measures undertaken by prison officials were reasonable as a matter of law. We reverse the decision of the district court and remand the cause for further proceedings consistent with this opinion.

BACKGROUND

On June 25, 1991, appellant Ronald Hayes commenced this action pro se. Pursuant to 42 U.S.C. § 1983, Hayes sought compensatory and punitive damages as redress for defendants’ alleged deliberate indifference to his safety during his incarceration at the House of Detention for Men (HDM), a high security facility on Rikers Island (Rikers) for approximately 1,200 men. He alleged that he suffered injury in connection with three attacks by other inmates at HDM on February 19, 1989, March 10, 1989, and April 2, 1989. Unless otherwise indicated, the following facts are undisputed.

I. The Incidents of February 15, March 10 and April 2

Hayes arrived at Rikers in 1988. During the fall of 1988, he allegedly informed various Department of Corrections (DOC) personnel that he was in danger in HDM, that he was concerned about his safety and that he wished to be transferred. The DOC personnel did not ask Hayes to identify his enemies or take any other action to protect Hayes.

On or about February 12, 1989, Defendant Grillo, the HDM security captain with principal responsibility for security at Rikers, summoned Hayes to a meeting in his office with Gary Tillman, another inmate. The substance of their conversation is hotly contested and forms the crux of this appeal. The defendants do not refute Hayes’ general allegation that he told Grillo that his life was in danger in HDM and requested a transfer. According to Hayes, however, he and Grillo specifically discussed Hayes’ “[problems with G [Gary Tillman] and his whole crew.” Grillo refused Hayes’ request for a transfer and, according to Hayes, he was warned that he would be held responsible if “anything [went] on” because Tillman had worked for Grillo for a long time and was a personal friend of his.

On February 15, 1989, Tillman and two other inmates, Terrence Campbell and Task-er Spruill, attacked Hayes, stabbing him in the back of the head, the temple, the right shoulder and the arm. Although Hayes refused to name his assailants to the investigating officer, Tillman, Campbell and Spruill were identified as “involved” in the investigating officer’s “Unusual Incident Report.” After this attack, the DOC issued separation orders for all of these inmates. The DOC also transferred Hayes, Tillman and Campbell out of HDM, and relocated Spruill to another block within HDM.

However, following an altercation during visitation with his wife on March 6, 1989, Hayes was transferred back to HDM to serve punitive segregation time within the Central Punitive Segregation Unit (CPSU). Upon his return to HDM, Hayes informed several DOC officials that he feared for his safety there. Several third persons, including another inmate, also expressed concerns for Hayes’ safety to DOC officials. Mental health services workers also met with Hayes and documented that he was extremely frightened, was threatening suicide, and appeared to be a security problem.

On March 8, 1989, while under escort to religious services, Hayes attacked Shawn Grams, another inmate, with a razor. Neither Hayes nor Grams cooperated with the investigation of the incident. HDM officials did not issue a separation order or take any other protective measures.

On that same day, Hayes again met with Captain Grillo to discuss his safety concerns and request a transfer. Grillo declined to transfer Hayes, but warned him not to attend the Muslim services scheduled for the common area of HDM on March 10, 1989. According to Hayes, he indicated that he would attend the religious services.

On March 9, 1989, inmate Campbell was transferred back to HDM to serve time in CPSU. Pursuant to the separation order and DOC policy, Hayes and Campbell were housed in separate cell blocks of CPSU.

On March 10, 1989, Hayes attended religious services. When he left the services to use the restroom, Grams and Campbell assaulted him, stabbing him in the back, hip and face. Following this incident, a separation order was issued for Hayes, Grams and Campbell. Grams was transferred out of HDM, and Campbell was transferred to another block of CPSU where he was under 23-hour lockdown. Nevertheless, Hayes continued to complain about threats to his safety and to request a transfer.

On April 2, 1989, Hayes and Campbell encountered one another as Campbell was concluding a visit and Hayes was beginning one. Campbell ran at Hayes, slashing his face with a razor. Nine DOC officers sustained injuries while restraining Campbell. Following this incident, a new separation order was issued and a handcuff order was issued for Campbell. Eventually, Hayes was transferred to another facility.

II. Procedural History

Acting pro se, Hayes engaged in limited discovery and submitted to a deposition in 1992 by defendants’ counsel. At that deposition, Hayes testified that he had expressed his safety concerns at a February 12, 1989 meeting with Captain Grillo and another individual whom he could not identify by name at that time. Specifically, counsel asked him “Do you recall the name of the other individual?” He responded “Not off hand, but he was named in the attack. He wound up attacking me as part of the February 15th incident.”

Counsel also questioned Hayes about the events following the first attack. Specifically, he asked:

Q. To the best of your recollection, what did you say about these warnings, in your own words?
A. I told them that I had enemies in H.D.M. and I had already been hurt here as a result of my enemies and it is not safe for me to be here.
Q. Did you name your enemies in H.D.M.?
A. I don’t recall. I don’t think so because I don’t know everybody by name.
Q. Did you give any names of enemies, any particular enemies?
A. I don’t recall.

Defense counsel did not ask Hayes whether he had identified his enemies in any other way or whether Hayes and Grillo had discussed the source of Hayes’ fears.

On June 2,1993, the district court appointed counsel for Hayes. Hayes’ counsel thereafter conducted further discovery and agreed to a second deposition, subject to limitations. More specifically, the parties engaged in the following colloquy on the record of the August 11,1993 deposition:

[Plaintiff’s counsel]: [T]he deposition of April 15 ’92 at Green Haven does not exist for purposes of trial or any other purpose related to this case. There’s nothing admissible in that deposition that could be used later on.
[Defense counsel]: For purposes of trial, we agree.

Hayes’ counsel failed to clarify the scope of the agreement.

At this second deposition, defense counsel again questioned Hayes regarding the February 12, 1989 meeting with Captain Grillo and a third individual. Hayes testified that the third individual was Gary Tillman and that he told Grillo at that time that he “had problems with G [Tillman] and other inmates,” with “his whole crew,” and that he believed his life was in danger in HDM. He also testified that Grillo told him that Grillo would hold him responsible if anything happened to Tillman because Tillman had worked for Grillo for a long time and was a personal friend of his.

On March 24, 1995, defendants moved for summary judgment contending that there were no genuine issues of material fact as to whether defendants were “deliberately indifferent” to Hayes’ safety under the standards set forth in Farmer v. Brennan, — U.S. -, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In support of their motion, defendants submitted excerpts from both of Hayes’ depositions. Because of ambiguity in the agreement regarding the first deposition and because of the failure of Hayes’ counsel to clarify that agreement, the district court allowed the defendants to include the testimony from the first deposition in support of their summary judgment motion.

After considering both depositions together, the district court concluded that Hayes had altered his testimony in material respects—primarily as to whether he had identified his alleged enemies to prison officials. In other words, the district judge interpreted Hayes’ second deposition as contradicting his first deposition and creating a material issue of fact where there was none prior to the second deposition. The court therefore disregarded the second deposition, at least to the extent that it filled the gaps of the first deposition with inconsistent testimony. Applying the summary judgment standard to the remaining facts, the district court concluded that the defendants initially lacked the requisite knowledge of a substantial risk to Hayes’ safety and that after learning of the potential danger the defendants enacted reasonable measures to abate the risk of harm to Hayes.

DISCUSSION

I. Conflicting Depositions on Summary Judgment

We review a grant of summary judgment de novo. Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir.1995). Summary judgment is proper only if “there is no genuine issue as to any material fact and when, based upon facts not in dispute, the moving party is entitled to judgment as a matter of law.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). All inferences drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). Yet, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted).

In applying this standard, the court should not weigh evidence or assess the ered-ibility of witnesses. United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994). These determinations are within the' sole province of the jury. Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir.1994).

However, a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony. Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969) (examining omission in four-day deposition); Martin v. City of New York, 627 F.Supp. 892, 896 (E.D.N.Y.1985) (examining direct contradiction between deposition and affidavit). “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma, 410 F.2d at 578. Thus, factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not “genuine” issues for trial. Id.

Guided by these cardinal principles, we conclude that the district court erred in disregarding portions of Hayes’ second deposition. In short, the circumstances in this ease do not justify the court’s refusal to consider portions of the second deposition.

First, the conflict in this case does not arise out of an affidavit crafted for the specific purpose of defeating a motion for summary judgment. It does not arise out of an affidavit at all. . In Perma, we concluded that statements in an affidavit filed in response to a summary judgment motion could not create material factual disputes where none existed without such affidavit. We recognized that a deposition of a witness, subject to cross-examination, is generally more reliable than an affidavit submitted to oppose a summary judgment motion. 410 F.2d at 578. In this case, however, the conflict arises from a deposition taken long before the defendants filed their motion for summary judgment.

Second, the circumstances surrounding the deposition testimony in this case are significantly different from the circumstances surrounding the affidavit in Perma. In this case, Hayes was not represented by counsel at the first deposition. He had conducted only limited discovery pro se by the time of the first deposition. Moreover, as is apparent from the transcript, the first deposition was very brief. By the time of the second deposition, appellant had retained pro bono counsel and counsel had conducted significant discovery. Additionally, the second deposition was considerably lengthier than the .first deposition. Contrast Perma, 410 F.2d at 577-78 (comparing affidavit with four-day counselled deposition).

Finally, the depositions in this case are only arguably contradictory. Contrast Martin, 627 F.Supp. at 896 (examining direct contradiction). Hayes testified at both depositions that he met with defendant Grillo and a third individual on February 12, 1989 to discuss his safety concerns. He testified at both depositions that this third individual was one of his attackers at the February 15, 1989 incident. At the second deposition, after further discovery, he identified Tillman by name. Although Hayes testified for the first time at the second deposition that he had informed defendant Grillo at the February 12, 1989 meeting that he felt threatened by Tillman and his “whole crew,” there is nothing in the first deposition that directly contradicts this statement. Essentially, he testified at the first deposition that he did not recall the name of the inmate present at the meeting with Grillo. With respect to his conversations with DOC personnel upon his return to HDM on March 6,1989, he testified that he did not recall whether he had identified anyone by name to DOC personnel because he did not know everyone by name.

In short, defense counsel did not ask questions at the first deposition sufficient to elicit the specific content of the conversation between Hayes, Grillo and Tillman at the February 12,1989 meeting. With respect to the conversations with DOC personnel after the first attack, the two depositions are consistent. As a result, we cannot conclude that the two depositions are contradictory without drawing an improper inference as to appellant’s credibility.

For all of these reasons, the district judge erred in discrediting portions of appellant’s second deposition. On these facts, the decision of the district court amounted to an improper assessment of credibility.

II. The Merits of the Eighth Amendment Claim

The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody. Farmer, — U.S. at-, 114 S.Ct. at 1976. Moreover, under 42 U.S.C. § 1983, prison officials are liable for harm incurred by an inmate if the officials acted with “deliberate indifference” to the safety of the inmate. Morales v. New York State Dep’t of Corrections, 842 F.2d 27, 30 (2d Cir.1988). However, to state a cognizable section 1983 claim, the prisoner must allege actions or omissions sufficient to demonstrate deliberate indifference; mere negligence will not suffice.

The test for deliberate indifference is twofold. First, the plaintiff must demonstrate that he is incarcerated under conditions posing a substantial risk of serious harm. Second, the plaintiff must demonstrate that the defendant prison officials possessed sufficient culpable intent. Farmer, — U.S. at -, 114 S.Ct. at 1977. The second prong of the deliberate indifference test, culpable intent, in turn, involves a two-tier inquiry. Specifically, a prison official has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm. Id. at-, 114 S.Ct. at 1984.

The district court concluded, and the defendants concede, that Hayes was incarcerated under conditions posing a substantial risk of serious harm. However, with respect to culpable intent, the district court eonclud-ed that the defendants lacked the requisite knowledge of risk to Hayes’ safety prior to the February 15, 1989 attack, and that after that incident, the defendants took reasonable measures to abate the risk of harm. In determining that the defendants lacked requisite knowledge, of the risk, the court relied primarily on its conclusion that Hayes did not identify his enemies to the defendants.

The district judge erred in concluding that there was not a material dispute with respect to the defendants’ knowledge prior to the February 15,1989 attack. First, we note that the issue is not whether Hayes identified his enemies by name to prison officials, but whether they were aware of a substantial risk of harm to Hayes. Although a prisoner’s identification of his enemies is certainly relevant to the question of knowledge, it is not, necessarily, outcome determinative. Second, accepting all of Hayes’ deposition testimony as true, Hayes did identify the source of the threats to defendant Grillo. Moreover, the presence of Tillman at the February 12, 1989 meeting with Grillo requires, on summary judgment, the affirmative inference that Grillo was aware of the source of Hayes’ difficulties. Although a jury ultimately could conclude, as did the district court, that Grillo believed Hayes was actually a threat to Tillman, the summary judgment standard requires the court to draw all inferences in favor of the non-moving party. Thus, there was a genuine issue as to a material fact, namely, the defendants’ knowledge of a substantial risk of harm to Hayes. Because the record does not reveal any protective measures prior to the February 15, 1989 attack, summary judgment was improper.

However, the district court also erred in concluding that there was not a genuine issue as to the reasonableness of the defendants’ protective measures after the February 15, 1989 attack. First, Hayes repeatedly expressed his fears to numerous DOC personnel and repeatedly requested a transfer. Although the defendants testified that DOC policy and practice permit special protective measures when an inmate provides specific identifying information regarding the source of a threat, other DOC officials testified that it is standard procedure to relocate an inmate whenever an inmate informs officials that his life is threatened. Thus, without further evidentiary support, we cannot conclude that the decision not to transfer Hayes was reasonable as a matter of law.

Second, even short of a transfer, there is a genuine issue as to whether the defendants’ protective measures were reasonable. The first attack was extremely violent, causing severe injuries to Hayes. Additionally, mental health workers had documented Hayes’ agitated mental state after the first attack and concluded that he presented a security risk. Nevertheless, despite the first altercation between Hayes and Grams, DOC officials failed to issue a separation order for the two. Moreover, despite the known risk to Hayes after the February 15, 1989 attack, Hayes was not under escort when he was attacked on March 10, 1989. Under these circumstances, it is difficult for us to conclude that the defendants’ protective measures were so significant as to be reasonable as a matter of law.

In short, the reasonableness of the defendants’ actions in this ease is suitable for resolution by a jury at trial. Thus, the district court erred in granting the defendants’ motion for summary judgment and dismissing appellant’s Eighth Amendment claim as to all defendants.

CONCLUSION

The decision of the district court granting defendants’ motion for summary judgment and dismissing the action as against all defendants is reversed and the cause is remanded for further proceedings consistent with this opinion.

      . The defendants do not refute the underlying facts as testified to by Hayes. Rather, the defendants refuse to credit portions of Hayes’ deposition testimony. Because we conclude, infra, that the district court erred in excluding portions of Hayes' deposition testimony, our recitation of the facts credits all testimony in deciding this appeal from summary judgment.

      . In light of our disposition of this issue, we need not decide (1) whether a district judge ever may exclude deposition testimony when the testimony contradicts earlier sworn testimony, or (2) whether it was improper for the district court to consider, on summary judgment, a deposition which the parties agreed was not available for purposes of trial.

      . The record demonstrates, for example, that when inmate Tillman reported a threat from an unknown individual to DOC security and stated that he feared for his life, defendant Grillo authorized Tillman's transfer that very day. The record also demonstrates that DOC officials have transferred prisoners from one punitive segregation unit to another and that.DOC officials are authorized to create new punitive segregation units when necessary.

      . We note that the district court did not consider the defendants' motion for summary judgment on a defendant-by-defendant basis. Accordingly, we limit our review to the conclusions of the district court.


author: MESKILL, Circuit Judge: VAN GRAAFEILAND, Circuit Judge,

text:
    AXA MARINE AND AVIATION INSURANCE (UK) LIMITED, and Marine Insurance Co. Ltd., Plaintiffs-Appellees, v. SEAJET INDUSTRIES INC., Sea Jet Trucking Inc., and A.P.A. Warehouse Inc., Defendants-Appellants.
    No. 1107, Docket 95-7821.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 29, 1996.
    Decided May 24, 1996.

      Mark I. Silberblatt, New York City (Edward H. Burnbaum, Lynch Rowin Novack Burnbaum & Crystal, New York City, of counsel), for Appellants.
    Brendan J. Malley, New York City (Mendes & Mount, New York City, of counsel), for Appellees.
    Before: VAN GRAAFEILAND, MESKILL and WINTER, Circuit Judges.
   MESKILL, Circuit Judge:

This is an appeal from a final judgment of the United States District Court for the Southern District of New York, Leisure, J., Axa Marine and Aviation Ins. (UK) Ltd. v. Seajet Indus., 891 F.Supp. 978 (S.D.N.Y.1995), denying the motion for summary judgment by defendants-appellants Seajet Industries, Inc., Seajet Trucking Inc., and APA Warehouse, Inc. (Insureds), and granting the cross-motion for summary judgment by plaintiffs-appellees AXA Marine and Aviation Insurance (UK) Limited, and The Marine Insurance Co., Limited (Underwriters). We have appellate jurisdiction under 28 U.S.C. § 1291.

Underwriters brought the present action under the Declaratory Judgment Act, 28 U.S.C. § 2201, seeking a declaration that their obligation to defend and/or indemnify Insureds was excused by Insureds’ failure to provide timely notice of claim, as required by the governing policy. The district court held that New York’s “no prejudice” rule applied to the instant dispute, and that Underwriters therefore weré entitled to refuse to defend and/or indemnify Insureds without making a showing of prejudice resulting from the failure by Insureds to provide timely notice of claim. Insureds appealed.

BACKGROUND

The facts of this case are not in dispute. Insureds owned and operated a trucking business and a number of warehouses located in Brooklyn, New York. Underwriters issued a policy covering Insureds’ liability incurred between March 29, 1990 and March 28, 1991 resulting from damage to or loss of the property of others while in the care of Insureds. On December 5, 1990, the Brooklyn warehouses were robbed, and property belonging to several bailors was taken. Insureds gave prompt notice of the robbery to their insurance broker, Coverage Consultants, Inc., which in turn notified Underwriters. One of the bailors, Cherry Stix, Ltd., was insured by American Motorists Insurance Company (American Motorists). American Motorists, as subrogee of Cherry Stix, Ltd., brought an action against Insureds in New York State Supreme Court, and served a summons on Insureds some time after December 20,1991.

Insureds never responded to the summons and never forwarded a copy of the summons to Underwriters as required by the policy. Subsequently, on March 80, 1992, American Motorists gave notice to Insureds that a motion for default would be made within the next thirty days. Again, Insureds did not respond or notify Underwriters. On or about July 20, 1992, American Motorists served a motion for default judgment in the amount of $595,032. Again, there was no response by Insureds and no notice given to Underwriters. Finally, on September 16, 1992, default judgment was entered against Insureds.

After entry of the default judgment, Insureds notified Underwriters of the American Motorists action. Underwriters assigned counsel to the matter, subject to a reservation of rights, in an effort to have the default judgment vacated. Counsel was successful in vacating the default judgment, but while the motion to vacate was pending, Underwriters denied coverage under the policy on the ground that Insureds failed to provide prompt notice of the American Motorists action. Underwriters then brought this action seeking a declaratory judgment that their obligations under the policy were terminated.

The relevant provision of the policy provided that:

If any claim(s), whether groundless or not, be made against the Insured on account of loss of or damage to property, the Insured shall notify the Company as soon as practicable and if suit is filed against the Insured to enforce any claim(s), the Insured shall immediately forward to the Company all summons or other notice(s) served upon the Insured.

The district court concluded as a matter of law, and the parties agree, that Insureds failed to notify Underwriters of the American Motorists claim or forward the relevant suit papers in a reasonable time. However, the parties disagree as to the need for Underwriters to show that they were prejudiced to deny coverage.

DISCUSSION

A.Standard of Review

We review de novo the district court’s grant of summary judgment. Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir.1995). Summary judgment is not appropriate unless there are no genuine issues of material fact and unless the undisputed facts warrant judgment as a matter of law for the moving party. Id. The facts in this case are not in dispute, thus summary judgment is proper if Underwriters are entitled to judgment as a matter of law. The district court properly held that New York law governs this dispute. Steinbach v. Aetna Cas. & Sur. Co., 81 A.D.2d 382, 385, 440 N.Y.S.2d 637, 640 (1st Dep’t 1981) (holding that a court should apply the law of the state “which the parties understood would be the principal location of the insured risk and the one most intimately concerned with the outcome of the litigation.” (quotations omitted)).

B. The Alleged Harms Suffered by Underwriters

Underwriters allege several harms resulting from Insureds’ failure to give Underwriters notice of the American Motorists claim. They cite the default judgment entered against their insured, for which Underwriters could have been held directly responsible under N.Y. Ins. Law § 3420(a)(2) (McKinney 1985). Underwriters also incurred legal expenses in persuading the New York Supreme Court to vacate the default judgment. Furthermore, Underwriters claim that the delay caused them to lose the opportunity to settle the American Motorists claim early, before litigation positions hardened.

If Underwriters proved that these alleged harms prejudiced them, they would be legally justified in terminating their duty to defend and indemnify. Unigard Security Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 581, 584 N.Y.S.2d 290, 292, 594 N.E.2d 571, 573 (1992); Restoration Realty Corp. v. Robero, 58 N.Y.2d 1089, 1091, 462 N.Y.S.2d 811, 812, 449 N.E.2d 705, 705-06 (1983); Toyomenka Pacific Petroleum v. Hess Oil V.I. Corp., 771 F.Supp. 63, 68 (S.D.N.Y.1991). However, Underwriters need not demonstrate prejudice to justify terminating their obligations under the policy. The New York Court of Appeals has adopted the no prejudice rule in cases involving a failure to give notice of occurrence and we believe that that court would apply the same rule to a case like this one, involving the failure to give notice of claim. See Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.1994) (stating that “[wjhere the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity.” (citation omitted)).

C.New York’s “No Prejudice” Rule

Under the no prejudice rule, “the notice provision for á primary insurer operates as a condition precedent and ... the insurer need not show prejudice to rely on the defense of late notice.” Unigard Security, 79 N.Y.2d at 581, 584 N.Y.S.2d at 292, 594 N.E.2d at 573 (citations omitted). Thus the no prejudice rule is an exception to two principles of the common law of contracts:

(1) that ordinarily one seeking to escape the obligation to perform under a contract must demonstrate a material breach or prejudice ...; and (2) that a contractual duty ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition.

Id. (citations omitted).

The New York Court of Appeals has characterized the no prejudice rule as a “presumption of prejudice.” Unigard Security, 79 N.Y.2d at 584, 584 N.Y.S.2d at 294, 594 N.E.2d at 575 (stating, in a late notice of occurrence case, that a “reinsurer must demonstrate how [late notice] was prejudicial and may not rely on the presumption of prejudice that applies in the late notice disputes between primary insurers and their insureds” (emphases added)). Except in cases where some excuse makes the delayed notice reasonable, it is clear that the presumption is a conclusive one. New York v. Blank, 27 F.3d 783, 793-94 (2d Cir.1994) (stating that “under New York law, ‘[a]bsent a valid excuse’ the insured’s failure to provide notice “vitiates coverage’”) (quoting In re Allcity Ins. Co. and Jiminez, 78 N.Y.2d 1054, 1055, 576 N.Y.S.2d 87, 88, 581 N.E.2d 1342, 1343 (1991)).

The no prejudice rule relieves the burden on the insurer to prove that prejudice resulted from the insured’s failure to provide notice. The New York Court of Appeals recently noted that other courts have articulated the various rationales for the no prejudice rule. Unigard Security, 79 N.Y.2d at 581-82, 584 N.Y.S.2d at 292, 594 N.E.2d at 573. Among those rationales cited by the Unigard Security Court were

that ‘the insurer [must have] an opportunity to protect itself ...; that without timely notice, ‘an insurer may be deprived of the opportunity to investigate a claim and is rendered vulnerable to fraud’ ...; and that late ‘notification may ... prevent the insurer from providing a sufficient reserve fund’ ( ...; and see, Security Mut. Cas. Co. v. Century Cas. Co., 531 F.2d 974, 978 [ (10th Cir.), cert. denied, 429 U.S. 860, 97 S.Ct. 161, 50 L.Ed.2d 137 (1976) ] [prompt notice permits the primary insurer to make an early estimate of potential exposure, to investigate the claim while witnesses and facts are available, and to take steps to prevent fraud]; Commercial Union Ins. Co. v. International Flavors & Fragrances, 822 F.2d 267, 271 [ (2d Cir.1987)] [early notice enables the insurer, inter alia, to exercise early control over the claim and enhances the possibility of settlement]).

Id. (citations omitted). Underlying all of these distinct rationales is the difficulty of measuring or proving the harm caused by untimely notice. Cf. American Ins. Co. v. Fairchild Indus., 56 F.3d 435, 440-41 (2d Cir.1995) (stating that “[a]n insurer cannot be expected to show precisely what the outcome would have been had timely notice been given. This uncertainty, however, is the result of the failure of the insured to comply with the policy.”).

There are two types of notice provisions in an ordinary insurance policy; notice of occurrence and notice of claim. The typical notice of occurrence provision requires that an insured notify its insurer of events that reasonably might give rise to liability covered by the policy. Id. at 439. A notice of claim provision requires that an insured notify its insurer whenever any assertion of liability is made by a third party. Id.

The New York Court of Appeals has held that the no prejudice rule applies to disputes between primary insurers and their insureds in the context of failure to give timely notice of occurrence. However, there is no reported Court of Appeals decision addressing whether the no prejudice rule applies to the failure to give timely notice of claim. Thus we must determine how the New York Court of Appeals would rule. Travelers Ins. Co., 14 F.3d at 119.

In Unigard Security, the Court of Appeals recited many rationales supporting the no prejudice rule. One of those rationales was that prompt notice allows an insurer to control litigation and enhances the chance of settlement. Unigard Security, 79 N.Y.2d at 582, 584 N.Y.S.2d at 292, 594 N.E.2d at 573. Although Unigard Security was a notice of occurrence case, the court addressed the no prejudice rule in general terms. We believe that an insurer’s interest in early control over litigation is served as much by prompt notice of claim as by prompt notice of occurrence, Blank, 27 F.3d at 794, and that this rationale supports the conclusion that the no prejudice rule also applies to the untimely notice of claim.

Insureds contend that the no prejudice rule does not apply where the insured gives untimely notice of claim but prompt notice of occurrence. They rely on Appellate Division decisions that distinguish between notice of occurrence provisions and notice of claim provisions on the ground that notice of claim is of little value to an insurer. We do not believe that these cases accurately reflect how the Court of Appeals would decide this question. The Court of Appeals’ decision in Unigard Security recognized an insurer’s interest in taking early control of litigation and in early settlement of claims, an interest not taken into account by the Appellate Division cases cited by Insureds. The loss an insurer suffers when it misses the early opportunity to settle a case, like the loss of the chance to promptly investigate an occurrence, is difficult to quantify or prove. Moreover, our cases decided since Unigard Security support our determination that the no prejudice rule should apply to notice of claim provisions.

We recognize that decisions of lower courts of the forum state must be given “proper regard” when a state’s highest court has not spoken directly to an issue. Travelers Ins. Co., 14 F.3d at 119 (quoting Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967)). However, it is also proper to consider the decisions of “federal cases which construe the state [rule].” Travelers Ins. Co., 14 F.3d at 119 (quoting In re E. and S. Dist. Asbestos Litig., 772 F.Supp. 1380, 1391 (E. & S.D.N.Y.1991), rev’d in part on other grounds sub nom. In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 (2d Cir.1992)).

The Appellate Division cases cited by Insureds rely on the argument that prompt notice of occurrence is of far greater value to an insurer than is prompt notice of claim. Lauritano v. American Fidelity Fire Ins. Co., 3 A.D.2d 564, 571, 162 N.Y.S.2d 553, 559 (1st Dep’t 1957), aff'd, 4 N.Y.2d 1028, 177 N.Y.S.2d 530, 152 N.E.2d 546 (1958); Home Indem. Co. v. State Farm Mut. Auto. Ins. Co., 64 A.D.2d 212, 214, 409 N.Y.S.2d 673, 674 (3d Dep’t 1978); Brooklyn Union Gas Co. v. North River Ins. Co., 124 A.D.2d 621, 621-22, 508 N.Y.S.2d 26, 26 (2d Dep’t 1986). Even accepting the overriding importance of notice of occurrence, several factors, including the Unigard Security decision, lead us to conclude that the New York Court of Appeals would apply the no prejudice rule to our case.

In Lauritano, the dispute was over the contours of Insurance Law section 167(c) (now N.Y. Ins. Law § 3420(a)(3) (McKinney 1985)), which allows an injured party to give notice to the liable party’s insurer to protect its right of direct suit against the insurer under section 3420(a)(2). Lauritano, 3 A.D.2d at 568, 162 N.Y.S.2d at 556. The majority held that an injured party should not be subject to as strict a standard in judging the reasonableness of delay in giving notice as should an insured, id., especially because notice of claim pales in comparison to notice of occurrence, and the insurer nearly always could be placed in as good a position as if timely notice were given. Id. at 571, 162 N.Y.S.2d at 559; see also Aetna Ins. Co. v. Millard, 25 A.D.2d 341, 344, 269 N.Y.S.2d 588, 591 (3rd Dep’t 1966) (finding no prejudice to the insurer because the injured party did not take a default judgment against insurer). The crux of the Lauritano case was the reasonableness of the delay, however, not the necessity of demonstrating prejudice from the delay. In fact, the no prejudice rule was not at issue in Lauritano.

We realize that the Brooklyn Union and Home Indemnity Courts, citing Lauritano, held that the insurer in each ease had not been prejudiced by the untimely notice of claim, thus implying that the insurer needed to demonstrate prejudice to escape its obligations on the grounds of late notice of claim. Those courts apparently relied on Laurita-no’s quick dismissal of the benefits to an insurer of timely notice of claim to decide that the no prejudice rule did not apply to those cases. However, the Home Indemnity and Brooklyn Union cases are inapposite because the insurers there actually did have notice of the claims, although not from their insured. Home Indemnity, 64 A.D.2d at 213, 409 N.Y.S.2d at 674 (noting that the insurer raising the defense of late notice of claim had received a communication from the attorney of the injured party informing the insurer of the accident with the insured’s vehicle and that a question existed as to whether the driver had permission to drive the vehicle); Brooklyn Union, 124 A.D.2d at 621, 508 N.Y.S.2d at 26 (stating that the “[insurer] received timely notice of the accident and the main action to recover damages for personal injuries” (emphasis added)). Moreover, like the Lauritano Court, the Home Indemnity and Brooklyn Union Courts did not address the insurer’s interest in early settlement.

Our cases decided since Unigard Security also support our conclusion that the no prejudice rule applies here. We noted in Blank that the considerations expressed by the Unigard Security and other courts in support of the no prejudice rule, “particularly the concerns over an insurer’s capacity to conduct litigation and settlement negotiations, apply equally to notice-of-claim provisions.” Blank, 27 F.3d at 794; see also American Ins. Co., 56 F.3d at 440 (stating that “[t]he lack of notice of a claim thus relieves Fireman’s Fund of any obligation under most of the insurance policies at issue” without requiring a showing of prejudice). The value to an insurance company of the opportunity to settle a claim early should not be underestimated. Early settlements limit the company’s exposure and may protect the insured from a judgment in excess of the policy coverage. When notice of claim is delayed, the ability of the insurance company to approach the injured party with a settlement offer early in the litigation is often lost.

It is difficult to quantify the prejudice to an insurer who has lost the opportunity to reach an early settlement. To prove prejudice, the insurer would have to show what the offer would have been and the likelihood that the injured party would have accepted it. The unlikelihood of succeeding in this daunting task suggests that fairness requires the application of the no prejudice rule. See American Ins. Co., 56 F.3d at 440-41 (stating that the “uncertainty ... is the result of the failure of the insured to comply with the policy, and it should not be permitted to use that uncertainty as a weapon against the insurer”). If the prejudice suffered were quantifiable and proven, insurers would be entitled to deny coverage. Unigard Security, 79 N.Y.2d at 581, 584 N.Y.S.2d at 292, 594 N.E.2d at 573. Because the prejudice of untimely notice of claim is likely and may be significant but unquantifiable, the no prejudice rule is appropriate.

Early notice of claim is important to an insured for several reasons. An early settlement can cap liability as to those injuries or damages that the parties were aware of at the time of settlement and the results of those injuries or damages. Mangini v. McClurg, 24 N.Y.2d 556, 568, 301 N.Y.S.2d 508, 518, 249 N.E.2d 386, 393 (1969) (holding that a party seeking to overturn a general release must show that “he did not know and could not know of the later revealed injuries”); Pokora v. Albergo, 130 A.D.2d 473, 515 N.Y.S.2d 56, 56-57 (2d Dep’t 1987).

In cases where the insured or its employees are likely to testify in pretrial proceedings, obtaining counsel for the insured and the insured’s employees is critical. If the notice of claim is delayed, the insured’s employees might make inappropriate statements to investigators for the injured party, thus providing information harmful to the insured’s exposure and that of the insurer.

The insurer’s own investigative interests served by prompt notice of occurrence are also served by prompt notice of claim. See Blank, 27 F.3d at 794 (noting that the interest in early investigation, and other interests “apply equally to notice-of-claim provisions”). Whereas notice of the robbery in this case allowed Underwriters to investigate promptly the facts pertaining to the actual robbery, the investigation could not at that tíme focus on the particular claims made by the individual claimants. While an occurrence may, at first blush, seem to be unsuspicious, a particular claim, in light of the facts of the occurrence, may indicate collusion between the insured and the claimant.

In this case, the stolen transport containers were sealed and the manifests indicated only that the containers held ladies’ apparel. In making a claim against Insureds, the claimed contents of those containers would have come to light, and while there is no evidence or allegation of collusion or wrongdoing on the part of Insureds or Cherry Stix, Ltd., the possibility of fraudulent claim is something an insurer is entitled to minimize. Prompt notice of claim is a valuable tool which insurers may use to protect themselves from fraud. Moreover, other contractual defenses might be available which depend on circumstances not investigated at the time of the occurrence. Thus the need for prompt investigation supports the application of the no prejudice rule to notice of claim cases. Id. at 794.

In sum, we conclude that the New York Court of Appeals would apply the no prejudice rule to this case, and conclude that Underwriters are entitled to a declaration that their obligations under the policy are excused by Insureds’ failure to give notice of claim in a reasonable time.

D. Judicial Estoppel

Insureds contend that Underwriters are judicially estopped from denying coverage as a result of the representations made by the attorneys retained by Underwriters to vacate the default judgment in the American Motorists action. The attorneys stated, in their motion to vacate, that “[cjoverage under the policy to defendants for legal liability arising out of the incident which forms the basis of this action, has not, to date, been declined by underwriters.”

Judicial estoppel is a doctrine that forbids a party from advancing contradictory factual positions in separate proceedings. The doctrine attempts to insure “the sanctity of the oath and the integrity of the judicial process.” Bates v. Long Island R.R., 997 F.2d 1028, 1037 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 550, 126 L.Ed.2d 452 (1993). A party invoking judicial estoppel must show that (1) the party against whom judicial estoppel is being asserted advanced an inconsistent factual position in a prior proceeding, and (2) the prior inconsistent position was adopted by the first court in some manner. Id. at 1038.

The district court relied on the first prong of the above standard and held that judicial estoppel was not applicable in this case because the in-court statement made by the attorneys assigned by Underwriters was not inconsistent with AXA’s denying coverage now. The district court held that their statement placed the New York Supreme Court on notice that the coverage was subject to being declined, and that AXA’s subsequent denial of coverage was entirely consistent with the prior statement. We agree. By stating that coverage had not been declined, “to date,” the attorneys expressly avoided committing Underwriters to any future course. Thus they were not estopped from later denying coverage.

CONCLUSION

For the reasons stated above, the judgment of the district court is affirmed.

VAN GRAAFEILAND, Circuit Judge,

concurring:

New York is one of the minority of states that apply the “no prejudice” rule in cases involving late notices of occurrence. See Ostrager and Newman, Handbook on Insurance Coverage Disputes §§ 4.02[c][l]-[2], 4.04 (7th ed.1988). The question not yet answered by the New York Court of Appeals is whether New York will apply the same unyielding doctrine in cases involving late notices of claim or suit, or whether it will follow the majority of jurisdictions by holding that an “insured’s failure to forward demands or other court papers will not relieve an insurer of its duties to defend or indemnify absent a showing of prejudice to the insurer.” Id. § 402[b][2], at 90.

In addition to the cases of Lauritano v. American Fidelity Fire Ins. Co., 3 A.D.2d 564, 162 N.Y.S.2d 553 (1957), aff'd, 4 N.Y.2d 1028, 177 N.Y.S.2d 530, 152 N.E.2d 546 (1958), Home Indem. Co. v. State Farm Mut. Auto. Ins. Co., 64 A.D.2d 212, 409 N.Y.S.2d 673 (1978), and Brooklyn Union Gas Co. v. North River Ins. Co., 124 A.D.2d 621, 508 N.Y.S.2d 26 (1986), cited by my colleague, there are other lower court decisions in New York that inject the requirement of prejudice into carriers’ defenses against coverage in cases of this nature. See, e.g., Aetna Ins. Co. v. Millard, 25 A.D.2d 341, 343-44, 269 N.Y.S.2d 588 (1966); Cohen v. East Coast Ins. Co., 54 Misc.2d 813, 815, 283 N.Y.S.2d 371 (1967); Zappia v. Allstate Ins. Co., 28 Misc.2d 723, 724, 212 N.Y.S.2d 698 (1961). These eases hold in substance that where, despite an insured’s failure to turn over process, the insured’s carrier is given an opportunity to defend, the carrier may not disclaim because of such failure.

The differences between the “no prejudice” adherents and the requirement-of-prejudice adherents are highlighted in Lauritano, supra. The insurance policy in that case contained a notice of claim provision almost identical with the one at issue herein. There, the majority in the Appellate Division distinguished between notices of occurrence or accident, on the one hand, and notices of claim or suit, on the other, stating with regard to the latter that “[i]t would be a rare occasion indeed when the carrier could not be placed in just as good a position as it would have enjoyed had the insured complied fully with his obligations.” 3 A.D.2d at 571, 162 N.Y.S.2d 553.

The dissent in Lauritano put this holding squarely in issue when it said:

The provisions of the policy are unambiguous, and state that no action is maintainable “unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of the policy.”

Id. at 581, 162 N.Y.S.2d 553.

The dissent followed this statement with the unqualified holding that the insured’s failure to deliver the summons and complaint to the carrier was “fatal to this action.” Id.

In the face of this clear-cut divergence between the majority and the dissent, the Court of Appeals’ affirmance, albeit without opinion, should not be lightly dismissed. This affirmance made the Court of Appeals “responsible only for the point decided, and did not make [the Court’s members] guarantors of all the reasons given or opinions expressed.” See Rogers v. Decker, 131 N.Y. 490, 493, 30 N.E. 571 (1892). However, although an affirmance without opinion does not make the Appellate Division’s decision binding authority, it does make the decision “persuasive” authority. See Tepper v. Tannenbaum, 65 A.D.2d 359, 360-61, 411 N.Y.S.2d 588 (1978).

In the light of all the foregoing, I am not convinced that the New York Court of Appeals would apply its “no prejudice” rule generally and without exception in all notice of claim or suit cases. I therefore would limit our holding to the facts of the instant case, where the carrier was required to spend time and money to cure the default, thereby establishing at least some degree of prejudice. With this limitation, I concur.

      . N.Y. Ins. Law § 3420(a)(2) (McKinney 1985) requires that all insurance policies insuring against damage to property include a provision that
      in case judgment against the insured or his personal representative in an action brought to recover damages for injury sustained or loss or damage occasioned during the life of the policy or contract shall remain unsatisfied at the expiration of thirty days from the serving of notice of entry of judgment upon the attorney for the insured, or upon the insured, and upon the insurer, then an action may ... be maintained against the insurer under the terms of the policy or contract.
      If such a provision is not included in the policy, a court construing the policy will enforce it as if it did include the provision. N.Y. Ins. Law § 3103(a) (McKinney 1985).