The opinion of the court was delivered by: James Orenstein, Magistrate Judge
On April 6, 2004, plaintiffs Iris and Frank Lettera (the "Letteras") were at the Walt Whitman Mall in Huntington, New York (the "mall"), which property is owned by defendant The Retail Property Trust ("RPT"). Mrs. Lettera tripped and fell on a ramp in the mall's parking lot and sustained various injuries. She sued RPT on the ground that the ramp was defective and dangerous. See Docket Entry ("DE") 1 ("Complaint") ¶ 16. As revealed through the discovery process, the Letteras' claim of negligence is grounded on an assertion that RPT was negligent in failing to ensure that the ramp's condition complied with certain provisions of the Americans with Disabilities Act (the "ADA") and the American National Standards Institute Code ("ANSI") as purportedly required by the Town Code of the Town of Huntington. Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 In Support of Defendant's Motion For Summary Judgment ("Stmt.") ¶¶ 9-11. RPT asserts that the ramp's non-compliance with the ADA and ANSI, even if assumed, cannot support a cause of action sounding in negligence, and that the Letteras' complaint must therefore be dismissed. For the reasons explained below, I agree and therefore grant summary judgment in favor of RPT and against the Letteras.
The Letteras filed their complaint on November 15, 2004. DE 1. In it, they asserted without elaboration that the Mall's parking area "was dangerous and defective and constituted a trap-like condition" and that RPT "had actual and/or constructive notice" of that condition. Complaint ¶¶ 16, 17. During the course of discovery, the Letteras retained an expert and put some flesh on the bone of their negligence claim. See DE 23 Ex. F ("Engineer's Report of the Lettera Injury By: Joseph C. Cannizzo, P.E.") ("Report"). Specifically, as the parties set forth in their joint pretrial order, the Letteras claim that the ramp was dangerous and defective because it failed to comply with the American [sic] with Disabilities Action [sic] Section 4.7.5, in that guardrails or handrails are required to have been installed atop the curb abutting the sidewalk/ramp. Additionally, said ramp failed to comply with the American National Standards Institute specifications as required by the New York State Uniform Fire Prevention and Building Code and the Americans with Disabilities Act, as required by the Town of Huntington, in that said ramp must have had flared sides and detectable warnings must have been utilized. The defective and dangerous condition of said ramp was the proximate cause of plaintiff IRIS LETTERA'S injuries.
DE 17 at 2. RPT identified a variety of factual and legal defenses to the Letteras' theory of liability, including assertions that the ADA does not apply (in part because the ramp at issue is "not a handicap ramp,") that the ramp's design was compliant with applicable regulations, and that Mrs. Lettera's injuries resulted at least partially from her own negligence. Id.
After the submission of their joint pretrial order, the parties consented to have the case referred to me for all purposes including the entry of judgment. DE 19. The Honorable Thomas C. Platt, United States District Judge, approved the referral and the case was reassigned to me. DE 22. On October 19, 2005, I scheduled a trial date and granted RPT permission to file a motion for summary judgment. DE 21. RPT did so on January 12, 2006. DE 23.
In seeking summary judgment, RPT argued that the Letteras' theory of liability rests on a flawed view of the law. They noted that the Letteras' "only basis for assessing liability . is that the ramp where Iris Lettera fell was defective because it failed to comply with the ADA, as well as the Building Code and ANSI, as required by the Town Code of the Town of Huntington, and that the above-referenced alleged defects were the proximate cause of . Iris Lettera's injuries." DE 24 (Defendant's Memorandum Of Law In Support Of Motion For An Order Granting Summary Judgment) ("Memo.") at 2. RPT went on to argue that such a theory is fatally flawed because the ADA does not establish a duty of care and because a code violation alone cannot support liability as a matter of law. Memo. at 3-8.
The Letteras initially opposed summary judgment the way most of us "oppose" parking tickets and inclement weather: they plainly expressed their preference against it and complained that its occurrence would be unjust, but they offered no substantive reason that remotely explained why, under the circumstances, it could not or should not happen. They submitted no statement of disputed material facts responsive to the defendants' statement pursuant to Local Civil Rule 56.1. More substantively, their memorandum in opposition did not even acknowledge, let alone refute, RPT's legal arguments about the legal insufficiency of their reliance on the ADA and ANSI. Instead, the Letteras reminded me that summary judgment is "an extreme remedy" that is rarely granted. DE 25 (Plaintiffs' Memorandum In Opposition To Defendant's Motion For Summary Judgment) ("Opp.") at 6. They then went on to insist at some length that the parties are in dispute about a number of factual issues, a point they illustrated primarily by pointing out the extent to which there are differences of opinion between the parties' respective experts. See Opp. at 7-11. RPT understandably pointed out the disconnect between the parties' memoranda in its reply. DE 27.
At a pretrial conference on January 23, 2006, the plaintiffs' counsel confirmed that there are no facts as such in dispute, but argued that there is a genuine material dispute as to whether the ramp at issue should have complied with the ADA and ANSI and insisted that the latter dispute is not amenable to decision as a matter of law. Instead, counsel urged that the issue requires a jury's determination because it reduces to whether compliance with the standards of the ADA and ANSI is something a reasonable engineer would require, and that such a requirement somehow creates a legal duty for property owners. In light of the fact that the theory just articulated was not addressed in the plaintiffs' memorandum in opposition to summary judgment, I allowed the plaintiffs an additional opportunity to submit a letter citing cases supporting the theory counsel described. DE 29. Counsel did submit a letter that purported to support the theory. DE 30. Because, as discussed below, the letter cited no authority that lent any actual support to the plaintiffs' position, I did not require counsel for RPT to respond, and instead proceeded to the merits on the basis of the record developed to date.
"Under Rule 56(c), summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed R. Civ. P. 56(c)). In determining whether to grant summary judgment, a court is confined to issue-finding, not issue-resolution. Rasmussen v. Sigma Corp. of America, 27 F. Supp.2d 388, 391 (E.D.N.Y. 1998) (citations omitted). A court does not "'weigh the evidence and resolve the factual issues'" but instead "'determine[s] as a threshold matter whether there are genuine unresolved issues of material fact to be tried.'" Owens v. New York City Hous. Auth., 934 F.2d 405, 408 (2d Cir. 1991) (quoting Gibson v. Am. Broad. Cos., 892 F.2d 1128, 1132 (2d Cir. 1989)); see Fed. R. Civ. P. 56(c). A fact is material if it "'might affect the outcome of the suit under the governing law.'" Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue is presented if "'the evidence is such that a reasonable jury could return a verdict for the non[-]moving party."' Id. In assessing the evidence, all factual inferences are to be resolved in favor of the non-movant. Zelinski v. Brunswick Corp., 185 F.3d 1311, 1315 (Fed. Cir. 1999).
The court's jurisdiction over this case arises from the parties' diversity of citizenship rather than on any claim predicated on federal law. As a result, I look to the choice-of-law rules of the forum state of New York to determine which jurisdiction's substantive law to apply. HSA Residential Mortgage Services of Texas v. Casuccio, 350 F. Supp. 2d 352, 361-62 (E.D.N.Y. 2003) (citations omitted). I need not engage in such analysis because there appears to ...