The opinion of the court was delivered by: ROSEMARY S. POOLER
In this personal injury action involving a United States Post Office in Franklin, New York, defendant United States of America (the "government") has moved for summary judgment against plaintiffs Louise and James McHale. Westcott has moved for summary judgment against the McHales and for indemnification against the government. In addition to opposing the motions for summary judgment, the McHales have cross-moved against the government for payment of their expert witness fee. Because I find that plaintiffs failed to establish a prima facie case for negligence or otherwise raise a material issue of fact, I grant defendants' motions for summary judgment and dismiss the complaint. Westcott's cross-motion seeking indemnification from the government is dismissed as moot. The government's cross-claim against Westcott seeking indemnification also is dismissed as moot. Finally, plaintiffs' motion against the government for payment of expert witness fees is granted.
The post office building currently is owned by defendant Westcott, who purchased the property in 1980. Since 1958, the government leased this space for a post office, and it currently pays rent of $ 220 per month. Westcott also owns and leases an apartment located above the post office. A lease between Westcott and the government dated June 1, 1987, states in relevant part:
The Lessor shall, except as otherwise specified and except for damage resulting from the act or negligence of Postal Service agents or employees, maintain the demised premises in good repair and tenantable condition. If the leased premises or any part thereof become unfit for use for the purposes for which leased, the Lessor shall put the same in satisfactory condition, as determined by the Postal Service, for the purposes for which leased. If Lessor fails to make repairs or otherwise restore the premises to tenantable condition within a reasonable time after receipt of notice from the Contracting Officer, the Postal Service shall have the right to perform the work, by contract or otherwise, and withhold the cost thereof from payments due or to become due under this contract.
General Conditions to Short Form Lease, P 8. The Short Form Lease also states that "Lessor, as part of the rental consideration shall furnish the following utilities, services and equipment: Water & sewerage service, maintenance, private toilet facilities, snow removal and taxes."
Mrs. McHale commenced a personal injury action on May 20, 1993, against defendant Westcott in New York State Supreme Court, Tompkins County. After receiving a third-party summons and complaint from Westcott on July 6, 1993, the government removed the action to federal court on July 9, 1993, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. The McHales filed an amended complaint on February 28, 1994, in which both Westcott and the government are named defendants.
The McHales previously had filed administrative claims with the U.S. Postal Service regarding the accident. In the amended complaint, Mrs. McHale demanded $ 200,000 for her injuries against both defendants, and Mr. McHale asserted a loss of consortium claim and demanded $ 50,000 against both defendants. On April 8, 1994, the government interposed a cross-claim against Westcott for indemnification.
I. Summary Judgment Standard
The standard for summary judgment is well settled. Summary judgment shall enter if, when viewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 112 S. Ct. 2072, 2077, 119 L. Ed. 2d 265 (1992). A party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the movant satisfies this initial burden, then the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of fact exists. Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). The nonmovant must do more than present evidence that is merely colorable, conclusory, or speculative, and must present "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson v. Liberty Lobby, ...