The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
MEMORANDUM OPINION & ORDER
On May 13, 2004, Plaintiff William J. Mele ("Plaintiff' or "Mele") commenced this personal injury action against the Metropolitan Transportation Authority ("Defendant" or "MTA") pursuant to the Federal Employers' Liability Act (the "FELA"), 41 U.S.C. 5 52, et sea., seeking to recover damages for injuries he suffered when he slipped and fell in an MTA facility. Plaintiff alleges that the accident was the result of the MTA's negligence and failure to provide him with a reasonably safe workplace. Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on two grounds: (1) that the Plaintiff fails to provide sufficient evidence to establish that the MTA had prior notice of the hazardous wet condition that caused him to slip, and (2) that the cleaning crew responsible for maintaining the lobby was not an "agent" of the MTA within the meaning of the FELA. The Court has considered thoroughly all of the parties' submissions and arguments, and has jurisdiction of this action under 28 U.S.C. 5 133 1. For the reasons set forth below, Defendant's motion for summary judgment is denied.
The following facts are undisputed unless characterized otherwise. Plaintiff claims he was injured on December 20,2002, when he allegedly slipped and fell in the lobby of the MTA's corporate headquarters at 347 Madison Avenue, New York, NY ("347 Madison Avenue"). (Def.'s S.D.N.Y. Local Civil Rule 56.1 Statement ("Def.'s 56.1 Stmt.") ¶¶ 1,5; Def.'s Notice of Mot. for Surnm. J. ("Def.'s Notice of Mot."), Ex. D ("Mele Dep.") at 111, 128-30.*fn1) At the time of his injury, Plaintiff was employed by the MTA Police Department as Assistant Deputy Chief of Operations Support. (Mele Dep. 57: 17-1 8; Def.'s 56.1 Stmt. ¶ 2.)
Heavy rain was falling on the morning of the accident. (Mele Dep. 855; Def.'s 56.1 Stmt. ¶ 3.) At approximately 9:00 a.m., Plaintiff left his office in the 345 Madison Avenue MTA building to attend a meeting on the fifth floor of 347 Madison Avenue. (Mele Dep. 88-89, 92, 94; Def.'s Mem. of Law in Supp. of Def.'s Mot. for Summ. J. ("Def.'~ Mem.") at 4.) Plaintiff testified that he then headed back to his office to retrieve additional paperwork at 10:30 a.m. (Mele Dep. 107-10.) While on the way back to his office, Plaintiff slipped and fell in the lobby of 347 Madison Avenue. (u at 11 1-12; Def.'s Mem., 5.)
Plaintiff alleges that the wet area upon which he slipped and fell was approximately four feet by four feet in size (twelve feet circumference) and that the water in the wet area was mixed with dirt and grime. (Mele Dep. at 119, 121-22.) Mele did not observe the wet condition on which he slipped at any time prior to the accident. (Def.'s 56.1 Stmt. ¶ 5.) Mele asserts that the wet substance was tracked-in rain water. (Mele Dep. 119:17-19.) Carpeted runners or mats had been placed on the floor near the main entrance of 347 Madison Avenue on the date of the accident. (Def.'s 56.1 Stmt. ¶ 4.) Plaintiff contends, however, that only half the number of mats ordinarily placed in the lobby on rainy days had been put out, and that the area in which he fell was normally covered with mats in inclement weather. (Pl.'s Opp'n to Def.'s Mot. for Summ. J., 8.) Plaintiff alleges that approximately half an hour after his fall, he observed additional mats placed in the area where he had slipped. (Mele Dep. 149-51 .) Plaintiff also alleges that the MTA Building Manager, Gary Weissbard, apologized to him after the accident and admitted that he had instructed the cleaning crew to put down mats in the area where Plaintiff slipped and fell prior to the accident. (Id. at 146-47.) The cleaning crew responsible for maintaining the lobby were provided by OneSource Facility Services, Inc. ("OneSource"), pursuant to a written contract with the MTA. (Def's 56.1 Stmt. ¶ 8; see Def.'s Notice of Mot., Ex. F.)
A motion for summary judgment shall be granted "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." Fed. R. Civ. P. 56(c). The moving party bears the burden of showing that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc, 477 U.S. 242,256 (1 986). When considering a motion for summary judgment, the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568,572 (2d Cir. 1993). The role of the court is issue-finding, and not issue-resolution. Id. However, "the mere existence of some alleged factual dispute between the parties" alone is insufficient to defeat a properly supported summary judgment motion; the dispute must be genuine. Anderson, 477 U.S. at 247-48 (emphasis in original). There is a genuine dispute of material fact only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
Plaintiff brings this action under the FELA, which provides, in relevant part, that "[every] common carrier by Railroad . . . shall be liable for damages to any person suffering injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C.A. 51 (West 2006). To recover damages under the FELA, a plaintiff must show that,
(1) the defendant is a railroad engaged in interstate commerce; (2) the plaintiff was an employee of the defendant in interstate commerce, acting in the course of his employment; (3) the defendant or one of its employees or agents was negligent; and (4) such negligence played a part, no matter how slight, in bringing about an injury to the plaintiff.
Mueller v. Long Island R.R. Co., No. 89 Civ. 7384(CSH), 1999 WL 1201747, at *3 (S.D.N.Y. Dec. 14, 1999) (citation omitted).
The MTA operates as an interstate common carrier within the meaning of the FELA. Greene v. Long Island R.R. Co., 280 F.3d 224,240 (2d Cir. 2002). It is undisputed that Plaintiff Mele was an employee of the MTA at the time of the accident and the MTA does not contest, in the context of this motion practice, that Mele was injured while acting in the course of his employment. The MTA argues on this motion, however, that Plaintiff cannot meet his burden as to the third and fourth elements of his FELA cause of action. The MTA contends that there is insufficient evidence to support a determination that it had actual or constructive notice of the wet condition upon which Plaintiff slipped, and that Plaintiff therefore is unable to prove negligence. The MTA also argues that it is entitled to summary judgment because the duty of remedying the ...