Opinion
No. 07-5190-cv.
August 13, 2009.
Appeal from the United States District Court for the Southern District of New York (McMahon, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the amended judgment of the district court entered October 23, 2007, is AFFIRMED.
Thomas M. Eagan (David T. Maloof, of counsel), Maloof Browne Eagan LLC, Rye, NY, for Plaintiff-Appellee.
Barry N. Gutterman, Barry N. Gutterman Associates, P.C., New York, NY, for Defendant-Appellant.
Present: ROBERT A. KATZMANN, B.D. PARKER, Circuit Judges.
The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. 46(d); Local Rule 0.14(2); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
SUMMARY ORDER
Defendant Union Pacific Railroad Company ("Union Pacific") appeals from an judgment entered October 23, 2007, granting plaintiff's motion for summary judgment. We assume the parties' familiarity with the facts, procedural history, and specification of issues on appeal.
On appeal, Union Pacific argues, in effect, that our prior decision in Sompo Japan Insurance Co. of America v. Union Pacific Railroad Co. ("Sompo I"), 456 F.3d 54 (2d Cir. 2006), was wrongly decided and should be vacated. However, "[t]his court is bound by a decision of a prior panel unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court en banc." In re Sokolowski, 205 F.3d 532, 534-35 (2d Cir. 2000) (per curiam) (alteration in original and internal quotation marks omitted). Union Pacific points to no intervening Supreme Court decision that would call into question the rationale of Sompo I. Therefore, we are bound by the prior precedent of this Court. For the foregoing reasons, the amended judgment of the district court is AFFIRMED.