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
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. 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.
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
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 ...