The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
AMENDED*fn1 MEMORANDUM OPINION AND ORDER
Plaintiffs Suzette Ciminelli ("Mrs. Ciminelli") and Robert Ciminelli ("Mr. Ciminelli") commenced the instant negligence action on October 16, 2003 in the Supreme Court of the State of New York, County of Suffolk. The action was removed from state court on November 19, 2003 based on diversity of citizenship. On March 2, 2004, the defendant impleaded third party defendant Shirley Drive-In Associates ("Shirley Drive-In").
The action arises from an accident that occurred at defendant Kohl's Department Store ("Kohl's") located at the Southport Shopping Center in Shirley, New York. Kohl's impleaded the third party defendant Shirley Drive-In Associates, LP ("Shirley Drive-In"), which owns the Southport Shopping Center where the accident occurred. Plaintiff Suzette Ciminelli alleges that she was injured when she slipped and fell on a puddle inside of the store. Presently before the court are four motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant Kohl's and third party defendant Shirley Drive-In seek summary judgment against the plaintiffs, asserting that no triable issues of fact exist with respect to any of plaintiffs' claims. See Pilot Air Freight Corp. v. City of Buffalo, No. 91 CV 0308E, 1996 WL 10701, at *2 (W.D.N.Y. 1996) (noting that under Federal Rule of Civil Procedure 14(a), a third-party defendant may assert against the plaintiff any defenses which the third-party defendant, or the the third-party plaintiff, has to the plaintiff's claim, such that "[e]ffectively, a third-party defendant may occupy the shoes of the defendant/third-party plaintiff"); Pinto v. Mickron Indus., Inc., No. 95 Civ. 8979, 1996 WL 572834, at *5 (S.D.N.Y. 1996) (granting third party defendant's motion for summary judgment against plaintiff). Additionally, third party plaintiff Kohl's moves for summary judgment and/or indemnification over and against third party defendant Shirley Drive-In. Third party defendant Shirley Drive-In also moves for summary judgment and /or indemnification over and against third party plaintiff Kohl's.
A. Testimony Concerning the Incident
On the afternoon of September 16, 2002, Suzette Ciminelli entered the Kohl's store in Shirley, New York, accompanied by her three children and her husband. (Suzette Ciminelli Deposition ("Mrs. Ciminelli Dep."), at 11-13.) Mrs. Ciminelli testified that while walking in an aisle between two registers, she slipped and fell to the ground. (Mrs. Ciminelli Dep. at 22-24.) According to her testimony, there were no witnesses to the accident (Id. at 39.) Her husband testified that he had exited the store shortly before the accident occurred. (Robert Ciminelli Deposition ("Mr. Ciminelli Dep.") at 6-7.)
Mrs. Ciminelli testified that she initially thought that a plastic hanger caused her to fall, because when she got up, one of her children said "Mom there's a hanger, you slipped on a hanger." (Mrs. Ciminelli Dep. at 84-85.) Mrs. Ciminelli testified that in response, she said, "No, my pants are wet." (Id. at 85.) She testified that after getting up, she noticed that the seat of her shorts and her legs were wet. (Id. at 29.) Mrs. Ciminelli testified further that she then saw a puddle on the ground less than a foot in size, and that she had not noticed the puddle prior to her fall or prior to realizing that her shorts and legs were wet. (Id. at 84-86.) Mrs. Ciminelli, who testified that she was wearing "between the toe" sandals with one-half inch soles at the time of the accident, did not feel any water on the ground just prior to the accident. (Id. at 37.)
Mrs. Ciminelli testified that after the accident, she told an employee at a register that she had just fallen, and the employee told her to go talk to the store manager who was in the jewelry department. (Id. at 30-31.) Mrs. Ciminelli testified that she then went to speak to Mr. Wilson, an assistant store manager, who accompanied her back to the location of the fall and prepared a report. (Id. at 33-34.) Mrs. Ciminelli testified she told Mr. Wilson that she slipped and fell on a puddle of water on the floor, and she showed him that her shorts were wet. (Id. at 87.) She testified that she and Mr. Wilson then looked at the floor and the ceiling above where she fell, and that she saw a "big brown and moldy spot" that "looked like a little hole." (Id. at 35.) She also testified that it had rained prior to the incident, though she could not remember precisely when. (Id. at 12.)
Robert Ciminelli, who testified that he had been waiting outside the store when the accident occurred, re-entered the store to look for his family and was told by his wife that she slipped and fell on some water. (Mr. Ciminelli Dep. at 8-9.) He testified that when he looked at the ceiling above the place where she fell, he saw "an old spot and a newer spot." (Id. at 10.) He stated that the older spot was "darker in color" than the newer spot, and that the "newer spot was just wet looking." (Id.) He testified that he did not see the water area that his wife was talking about, and that he could not remember if he saw any water actually dripping while he was in the store. (Id. at 11.)
Richard Wilson ("Wilson"), the assistant store manager at the time of the accident, testified that he learned of the accident upon being paged, and that when he arrived at the location where the accident occurred, he saw some water on the floor. (Wilson Dep. at 10-11.) He testified that he believed something was leaking from the ceiling, because there was a wet spot on the ceiling. (Id. at 12-13.) He stated that he did not recall anything actually dripping from the ceiling at the time. (Id. at 13.) Wilson testified that prior to September 16, 2002, he had never noticed the wet spot on the ceiling before, and he had not received a complaint about a leak on the roof or problems with the ceiling. (Id. at 13, 23,26.) Wilson testified that he blocked off the section, notified the operations manager (id.), and filled out an accident report and took photographs of the area where the accident occurred (Id. at 15-19.) The description of the incident in the accident report states: "Customer was walking in-between bays to exit store, and slipped on floor--water had leaked from ceiling--customer fell and landed on butt." (Kohl's Accident Report, dated September 16, 2002, annexed to Pl.'s Mot. at Exh. K.)
Mrs. Ciminelli testified that after the accident, she felt pain in her entire body, in particular her right arm, right shoulder, and lower back. (Id. at 40.) She stated that she went to see her regular doctor, Dr. Cardenas, the day after the accident, and that Dr. Cardenas gave her a prescription and told her to wear an ice-pack and return in one week. (Id. at 42-45.) Mrs. Ciminelli testified that some of the achiness went away, but her shoulder and arm were still bothering her. (Id. at 46-47.) When there was no improvement after three weeks, Dr. Cardenas referred her to a radiologist for x-rays. (Id. at 46-47.) After reviewing the x-rays, Dr. Cardenas referred her to Dr. Finger, an orthopedists at Brookhaven Orthopedics, who treated her with injections. (Id. at 47-48.) Dr. Cardenas also prescribed physical therapy, which she underwent at South Shore Physical Therapy with Dr. Herro. (Id. at 48.) She stopped physical therapy in approximately May 2004, and stated that as of July 2004, Dr. Finger was the only one treating her. (Id. at 57,59.) Mrs. Ciminelli testified that, as of July 2004, her physical complaints were soreness and stiffness in her right shoulder, and soreness in her neck. (Id. at 74.)
B. Testimony Concerning the Property
Shirley Drive-In, which owns the Southport Shopping Center where the Kohl's is located contracts with Lerner-Heidenberg Properties to manage the Southport property. (Deposition of Marc Ruby, dated Jan. 19, 2005 ("Ruby Dep."), at 7-8.)) Marc Ruby, a property manager with Lerner-Heidenberg Properties since 2000 and an agent of Shirley Drive-In, is the individual responsible for handling maintenance issues at the Southport Shopping Center. (Ruby Dep. at 9.) He stated that if a tenant reports a roof leak, he calls a roofing contractor who will make the repair and then send him an invoice. (Id. at 41-42.) He testified that prior to September 2002, he never inspected the roof of Kohl's nor had any discussions with any Kohl's employees regarding the roof. (Id. at 24.) He testified that, to his recollection, neither he nor the other property manager had ever received any communication from Kohl's with respect to the roof, or regarding leaks from the roof, prior to September 2002. (Id. at 26-27.)
Contrary to Mr. Ruby's recollection, a letter dated June 5, 2003, from Melody Cleaver, a case manager at Helmsman Management Services, Inc.(the managing agent for Kohl's) to Iris Bray, at Fireman's Fund (Shirley Drive-In's insurance carrier), details a history of reported leaks at the Kohl's property in Shirley. (See Letter from Melody Cleaver to Iris Bray, dated June 5, 2003, annexed to Pl.'s Mot. as Exh. L.) The letter outlines leaks at various locations in the store reported for insurance purposes on March 13, ...