The opinion of the court was delivered by: Karas, District Judge
Plaintiff Shelby Greene Zarlin ("Plaintiff") alleges she suffered injuries as the result of an accident on an international flight operated by Defendant Air France ("Defendant") and that the airline is liable for her injuries. Defendant moves for Summary Judgment under Federal Rule of Civil Procedure 56. For the reasons stated in this Opinion, Defendant's Motion for Summary Judgment is GRANTED.
Plaintiff is an adult female, who was sixty-four years of age at the time of the matters alleged in the Complaint. (Def.'s 56.1 ¶ 1; Pl.'s 56.1 ¶ 1.) On September 6, 2003, Plaintiff was a passenger aboard Air France Flight 23, which departed from John F. Kennedy International Airport, New York, New York, for Charles DeGaulle International Airport, Paris, France. (Def.'s 56.1 ¶¶ 2-3; Pl.'s 56.1 ¶¶ 2-3.) At the outset of the flight, Plaintiff occupied a window seat in Row 39 of the "coach" class cabin. (Def.'s 56.1 ¶¶ 4-5; Pl.'s 56.1 ¶¶ 4-5.) Plaintiff's husband, Leonard Zarlin, occupied the aisle seat of the same three-seat row, with an empty seat between him and Plaintiff. (Leonard Zarlin Dep. 13:13-14:6.) Passenger Gary Ruinsky ("Ruinsky") occupied the seat directly in front of Plaintiff. (Def.'s 56.1 ¶ 6; Pl.'s 56.1 ¶ 6.) At various points during the flight, Ruinsky attempted to recline his seat. (Def.'s 56.1 ¶ 7; Pl.'s 56.1 ¶¶ 29, 54, 63, 90, 123.) According to Air France Flight Attendant Eric Sagot ("Sagot"), by requirement of the Direction Générale de L'Aviation Civile, the aviation regulatory body for France, and by Defendant's own practice, passengers are required to have their seats in the upright position at the time of take-off, after which passengers are permitted to recline them. (Sagot Dep. 37:11; Pl.'s Dep. 101:23-24.)
Plaintiff alleges that Ruinsky, seated in front of her, "pushed his seat back" until it touched her. (Compl ¶ 14; Def.'s 56.1 ¶ 9.) Plaintiff alleges that Ruinsky took this action deliberately and that, following a dispute between them, a flight attendant was summoned. (Compl ¶¶ 14-15.) Flight Attendant Sagot offered Plaintiff reseating away from Ruinsky in Row 48 of the aircraft, which had three contiguous empty seats. (Def.'s 56.1 ¶¶ 10-11; Pl.'s Dep. 106:15-16, 106:21-23.)*fn1 Plaintiff moved to this row of seats, but returned to her original seat behind Ruinsky approximately thirty-five or forty minutes later, of her own volition and without informing any member of the crew. (Def.'s 56.1 ¶¶ 12-13; Pl.'s 56.1 ¶¶ 12-13; Pl.'s Dep. 107:4, 112:6-19.)
Plaintiff alleges that after returning to her original seat, Ruinsky again "deliberately push[ed] his seatback into her" and that, in response, Plaintiff and/or her husband again summoned the flight attendant. (Pl.'s 56.1 ¶¶ 123-24.) On arrival, Sagot asked Ruinsky to put his seat up for the meal service and although Ruinsky did so, he once again pushed his seat back down "a little" when Sagot left. (Pl.'s 56.1 ¶ 127.) Plaintiff alleges that, following the meal service, Ruinsky "mad[e] a scene" and that, after she called Sagot yet again, Ruinsky pushed his seat back, "striking and injuring the Plaintiff." (Def.'s 56.1 ¶ 17; Pl.'s 56.1 ¶ 129.)
Plaintiff also complains of Defendant's conduct following this alleged injury. The Parties agree that, after this incident, Sagot moved Ruinsky and his wife to new seats "toward the front of the plane" and left the seats in front of Plaintiff empty. (Pl.'s 56.1 ¶ 133.) The parties also agree that Plaintiff asked Sagot for aspirin and that Sagot told her none was available. (Pl.'s 56.1 ¶ 131.) While the Parties dispute the specifics, Plaintiff alleges that she requested a wheelchair for her use in the airport at the time of the plane's arrival in Paris and that Sagot told Defendant that none was available," although a wheelchair ultimately was made available for her use upon arrival. (Pl.'s 56.1 ¶ 135; Pl.'s Dep. 136:7.)
Once in Paris, France, Plaintiff boarded a connecting flight to Florence, Italy. (Def.'s 56.1 ¶ 18; Pl.'s 56.1 ¶ 18.) Plaintiff did not seek any medical treatment in Italy. (Def.'s 56.1 ¶ 19; Pl.'s 56.1 ¶ 19, 138.) Plaintiff did seek medical treatment following her return to the United States for her alleged injury to her right knee suffered on the flight to Paris. (Def.'s 56.1 ¶ 20; Pl.'s 56.1 ¶ 140; Compl. ¶ 51.)
Plaintiff seeks damages for, among other things, medical costs, the value lost in a country club membership, and expenses incurred for pool membership and to resurface her tennis court, all supposedly as a result of her injury. (Compl. ¶ 52-55.)
Summary judgment may be granted when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must view all evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-movant's favor. See Tufariello v. Long Island R.R., 458 F.3d 80, 85 (2d Cir. 2006). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Segal v. City of New York, 459 F.3d 207, 211 (2d Cir. 2006). "Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact, the nonmoving party, in order to defeat summary judgment, must come forward with evidence that would be sufficient to support a jury verdict in his favor." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). "The motion 'will not be defeated merely . . . on the basis of conjecture or surmise.'" Id. (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)).
To avoid summary judgment, the non-moving party must offer "some hard evidence" of its version of the facts, not merely rely on conclusory allegations or speculation. D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998); see also McPherson v. N. Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."); Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) ("[The non-movant] must do more than show there is some metaphysical doubt as to the material facts. . . ." (internal quotations omitted)).
The materiality of the facts considered will be governed by substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At summary judgment, the Court is not charged with weighing the evidence, but with determining whether there is a genuine issue for trial. See Castro v. Met. Transp. Auth., No. 04 Civ. 1445, 2006 WL 1418585, at *2 (S.D.N.Y. May 23, 2006); see also Westinghouse Elec. Corp. v. N.Y. City Transit Auth.,735 F. Supp. 1205, 1212 (S.D.N.Y. 1990). A court's goal should be to "isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate if "there are no ...