The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff filed this action seeking monetary damages from Defendants Long Island Railroad Company ("LIRR"), Penn Station Books, Inc. ("PSB"), and Paujay Smoke Shop, Inc. ("PSS"), for injuries she allegedly sustained when she was struck by freight falling from a moving cart on November 21, 2001, at Pennsylvania Station in New York City. Plaintiff's first cause of action alleges that LIRR failed to provide a safe workplace pursuant to the Federal Employer's Liability Act ("FELA"). 45 U.S.C. §§ 51-60. Plaintiff's second and third causes of action allege negligence by PSB and PSS, respectively. Before the Court are all Defendants' motions for summary judgment. For the reasons stated herein, the motions are DENIED.
On November 21, 2001, Plaintiff was at Pennsylvania Station ("Penn Station") in New York, New York, where she was working as an Assistant Conductor for her employer, Defendant LIRR. (Def. LIRR's Stmt. Pursuant to Rule 56.1 ("LIRR's Rule 56.1 Stmt.") ¶ 1; Am. Compl. ¶ 5.) At all relevant times, LIRR was a "common carrier" engaged in interstate commerce as that term is defined in FELA. (LIRR's Rule 56.1 Stmt. ¶ 2; see also 45 U.S.C. § 57 (defining "common carrier").) Defendants PSB and PSS are vendors that lease retail space located at the Long Island Railroad level of One Penn Plaza. (Mandelbaum Reply Decl. ¶ 4; Stanziola Decl. ¶ 2.)
At approximately 2:20 p.m., Plaintiff had a "change" between trains and was walking from the train platform level of Penn Station to the "trainman's room."*fn1 (Johnson Dep. 12:7-22.) To get to the trainman's room from the Penn Station concourse, LIRR employees had to pass through one of a set of four adjacent double doors which led into a corridor connecting Penn Station to One Penn Plaza. (Johnson Dep. 16:11-20; Maldonado Dep. 18:14-19:6, 27:25-28:4; LIRR's Rule 56.1 Stmt. Ex. I.) Because of security concerns in the wake of the September 11 terrorist attacks, the doors connecting the concourse to the corridor were locked and were regularly supervised by a guard. (Johnson Dep. 17:5-12, 86:5-14.) Also for reasons of security, only a single set of the four available double doors was in use. (Johnson Dep. 16:18-20; LIRR Corporate Employee Accident-Injury Report 1.)
As Plaintiff went through the double doors connecting the concourse to the corridor, she noticed two men coming through the same doors in the opposite direction. (Johnson Dep. 17:16-18:15; Rahman Aff. ¶ 3.) Plaintiff had never previously seen these men. (Johnson Dep. 19:7-11.) The men were pushing a cart containing bundled magazines, which were "stacked very high" and which were not secured to the cart in any way. (Johnson Dep. 18:18, 93:18-21; Rahman Aff. ¶ 3.) Plaintiff backed up through the doorway and moved to the side, against the wall, so that the men with the cart would be able to pass. (Johnson Dep. 17:20-18:3; Rahman Aff. ¶¶ 3-5.) As the men were passing through the doorway, their cart became stuck on the threshold of the doorway. (Johnson Dep. 18:4-15; Rahman Aff. ¶ 4.) In their efforts to free the cart, the two men "yanked" the cart and pushed it "hard." (Johnson Dep. 18:4-15; Rahman Aff. ¶ 4.) As a result, several of the bundles, each containing 20 to 25 magazines (Rahman Aff. ¶ 6), fell off of the cart and hit Plaintiff, resulting in her injury. (Johnson Dep. 18:12-15; Rahman Aff. ¶ 5.)
The security guard on duty at the time was Muhammed Rahman ("Rahman"). (Rahman Aff. ¶ 1.) Rahman saw the incident take place and recognized the two men who were handling the cart. (Id. ¶ 3.) In an affidavit submitted on behalf of Plaintiff, he identifies the men as "Shoel Goni" ("Goni") and "Akm-mohi Uddin" ("Uddin"). (Id. ¶ 3.) According to Rahman, when the incident took place, both Goni and Uddin were employed by PSB. (Id.) PSB denies having employed Goni or Uddin during the relevant period. (PSB's and PSS's Answer to Am. Compl. 2.) PSS also denies having employed Goni, but admits that Uddin was its employee when the incident took place. (Id. at 3.) However, in a letter to opposing counsel dated March 8, 2005, counsel for PSB and PSS stated that "Penn Station Books no longer employes [sic] Suhail Ghani and Mohammed Akin Udin." (Pl.'s Local Rule 56.1 Stmt. in Opp'n to Def.'s Mot. Ex. 5.)
None of the Defendants owns, leases, or controls the area where Plaintiff was injured. (Mandelbaum Aff. ¶ 6; Mahon Aff. ¶ 12.) Although Plaintiff had regularly seen people moving freight on carts prior to the incident, she had never previously seen such carts coming through that door. (Johnson Dep. 19:12-17.) Plaintiff is unaware of any previous accidents or complaints regarding the moving of freight in the area. (Id. at 24:24-25:8.) However, LIRR was aware that this doorway was "the only access at the time" for deliveries (Maldonado Dep. 17:20-18:2), and it was not unusual for vendors to transport freight around the concourse area of One Penn Plaza using carts. (Id. at 27:11-20.)
Under Federal Rule of Civil Procedure 56(c), "[s]ummary judgment is appropriate when after viewing all the facts in the record in a light most favorable to the non-moving party, there is no genuine issue of material fact present, so that 'the moving party is entitled to judgment as a matter of law.'" Forsyth v. Fed'n Employment & Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005) (quoting Fed. R. Civ. P. 56(c)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "Such relief for the moving party may be appropriate after discovery if the non-moving party cannot prove an 'essential element of her case,' that is, one for which she bears the burden of proof." Forsyth, 409 F.3d at 569 (citing Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004)).
The burden is on the movant to show that there is no genuine factual dispute. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). "In deciding a motion for summary judgment, all ambiguities must be resolved and all reasonable inferences drawn in favor of the party opposing the motion." EMI Catalogue P'ship v. Hill, Holliday, Connors, Cosmopulos Inc., 228 F.3d 56, 61 (2d Cir. 2000) (citing Anderson, 477 U.S. at 255); see also Giannullo, 322 F.3d at 140. "If the evidence is such that, when viewed in the light most favorable to the nonmoving party, a reasonable fact finder could return a verdict for that party, then a genuine issue of material fact exists, and summary judgment is not warranted." Magan v. Lufthansa German Airlines, 339 F.3d 158, 161 (2d Cir. 2003) (citing Green Door Realty Corp. v. TIG Ins. Co., 329 F.3d 282, 286-87 (2d Cir. 2003)).
However, Fed. R. Civ. P. 56(e) provides that the adverse party "may not rest upon the mere allegations or denials of [its] pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Thus, "[o]nce a moving party has made a showing that no material issues of fact are in dispute, mere conjecture or speculation by the party resisting summary judgment does not provide a basis upon which to deny the motion." Quarles v. ...