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January 16, 2001


The opinion of the court was delivered by: Stein, District Judge.


Jennifer Velez brings this diversity action against Sebco Laundry Systems, Inc. for injuries she suffered when a glass door fell out of a clothes dryer owned by Sebco and landed on plaintiff's foot. Sebco moves for summary judgment pursuant to Fed.R.Civ.P. 56(c) on the grounds that Velez has failed to produce legally sufficient evidence to support a finding that Sebco was negligent. That motion should be granted: (1) because the doctrine of res ipsa loquitur, which allows the finder of fact to infer negligence simply from the fact that an event occurred, does not apply here since the dryer was not under Sebco's exclusive control, and (2) because Velez offers no evidence that Sebco had either actual or constructive notice of a possible defect in the dryer door.


The accident occurred on January 22, 2000, while plaintiff was doing laundry alone in the laundry room of her New York apartment building.*fn1 Velez did not notice anything wrong with the dryer when she loaded her clothes. After leaving the laundry room for approximately 30 minutes, she returned to unload the dried clothes. When she opened the door to dryer number 1, a circular piece of intact glass fell out of its casing and onto plaintiff's foot. She suffered a sprained ligament in her right foot and was taken to the hospital.

Although Sebco does not own or manage the apartment building, it does own and operate the five washing machines and three dryers in the laundry room. By virtue of its contract with the apartment house, "all machines and equipment . . . shall be . . . under the exclusive control and supervision of [Sebco]," which must "maintain and service the Machines." (Lincoln Aff., 5 Year Laundry Contract ¶¶ 3(c), 8.) The laundry room that contained dryer number 1 services tenants in 14 apartments in that building.

The service reports for the laundry facility dating from February 12, 1999 to January 24, 2000, contain no reports of glass falling out of a dryer door. They do include repairs for broken door locks and door handles. Sebco's service technicians inspect the machines at least once per month. Velez was aware that dryer number 1 was in need of repair six months before the accident because it was not drying clothes properly, but she believed the machine had been fixed. Velez had never had glass fall on her from a clothes dryer before, and she is not aware of any similar incident befalling anyone else in the building.

A few months after the accident, Velez filed a complaint in New York State Supreme Court, New York County. The complaint included a single cause of action — negligence and a single defendant Sebco. Sebco then removed the action to this Court on the basis of diversity of citizenship and an assertion that the damages exceeded $75,000.


A. Summary Judgment Standard

Summary judgment may be granted "only when the moving party demonstrates that `there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor, and may grant summary judgment only when `no reasonable trier of fact could find in favor of the nonmoving party.'" Allen, 64 F.3d at 79 (citation omitted) (quoting Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts to show there is a factual question that must be resolved at trial. Fed. R.Civ.P. 56(e); see also Legal Aid Society v. City of New York, 114 F. Supp.2d 204 (S.D.N.Y. 2000). A nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). In short, a nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Choice of law

New York state law applies to this tort action because a federal court sitting in diversity applies the law of the forum state and because New York is the state where the tort occurred. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 80, 58 ...

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