The opinion of the court was delivered by: Richard J. Sullivan, District Judge
Plaintiff Michael Webb brings this diversity action alleging a state law claim for negligence against Defendant Amili, Inc. Before the Court is Defendant's motion for summary judgment, brought pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons stated below, Defendant's motion is granted and this case is dismissed.
1. The Parties Plaintiff is an employee at the Food Emporium located at 2008 Broadway at 68th Street in New York, New York (the "Demised Premises"). (Def.'s 56.1 ¶ 9.) Defendant has owned the Demised Premises since January 12, 1988, and the Demised Premises have been leased to the Great Atlantic & Pacific Tea Co. ("A&P") since that same date. (Id. ¶¶ 35-37.)
2. The Slip and Fall This action is predicated on a "slip and fall" suffered by Plaintiff. (Id. ¶ 6; see also Def.'s 56.1 Ex. F at 15:2-5.) As set forth by Plaintiff in his July 23, 2009 deposition, the accident occurred around 1:30 p.m. on June 27, 2005 in the men's bathroom on the basement level of the Demised Premises. (Def.'s 56.1 Ex. F at 15:2-15.) Specifically, Plaintiff was "going to the bathroom to use the bathroom," took "[l]ike three steps" towards a urinal in the bathroom, "did [his] business," "turned around," took "half" a step, and then slipped on "[w]ater that [was] leaking from the urinal, or it could [have] be[en] urine . . . [i]t could have been mixed." (Id. at 15:20-21; 42:17-43:22; 46:16-19.) Plaintiff testified that he had previously noticed water leaking from the "handle of the urinal" "practically every day." (Id. at 51:7-52:4.) Plaintiff further testified that he had noticed "puddles or fluid or water" on the floor of that bathroom prior to the date of the accident, and specified that "[m]ost of the time," the puddles were in the spot on which he had slipped, but that at "times[,] they were in different spots." (Id. at 50:8-15.) When asked whether Plaintiff had noticed any "other problems with the bathroom" beyond water leaking from the urinal handle, Plaintiff elaborated that he had also witnessed a "[leak] in the urinal, on the toilet, the commode." (Id. at 55:21-56:14.) Plaintiff summarized the overall condition of the bathroom as follows: "Sometimes, you know, to me, it's appropriate. Sometimes it's not." (Id. at 55:19-20.)
3. The Lease and the Rider As noted, the Demised Premises have been leased by Defendant to A&P since January 12, 1988. (Def.'s 56.1 ¶¶ 35-37.) Two relevant documents govern that lease: a lease, dated June 5, 1985 (the "Lease"), and a rider to that lease, dated June 6, 1985 (the "Rider"). (See Def.'s 56.1 Ex. H.) Several sections of the Lease and the Rider are relevant to this litigation.
Section 10 of the Lease provides that: Access to Premises: Tenant shall permit Landlord or Landlord's agents and designees to enter upon the Demised Premises at all reasonable times (a) to make repairs, replacements and restorations to the Demised Premises which are required to be made by Landlord, (b) to make repairs, replacements and restorations to conduits, pipes, utilities and structural installations, including columns, serving the Tower, which repairs, replacements and restorations can only be made through the Demised Premises, and (c) to exhibit the Demised Premises to prospective purchasers and prospective tenants, but in the latter case only during the last twelve (12) months of the term of this Lease. (Pl.'s 56.1 ¶ 58; see also Def.'s 56.1 Ex. H.)
Section 7 of the Rider provides, in relevant part, that Section 7 of the Lease (which Section pertains to improvements, repairs, alterations and replacements respectively) is hereby deleted and the following Section is hereby substituted in its place and stead: Section 7. Improvements, Repairs, Alterations, Replacements: (a)(i) Tenant shall make all necessary replacements of . . . and all necessary interior non-structural repairs and replacements to the Demised Premises including without limitation repairs to the heating, ventilating and air conditioning system, to the interior plumbing and portions of the electrical systems for the point at which the separate service is provided for the Demised Premises in the Demised Premises or in the basement of the New Building. (Def.'s 56.1 ¶¶ 45-46; see also Def.'s 56.1 Ex. H.)
The Rider further provides that: (a)(ii) Landlord shall make . . . all structural repairs and replacements and all repairs and replacements to the exterior (except as provided above with respect to the plate glass and window and door frames) and floor of the Demised premises . . . (but not the floor covering). The Declaration shall require the Condominium Board to make all necessary repairs and replacements to the water, sewer, and electrical system serving the demised premises up to the point and including the point at which the separate service is provided for the Demised Premises in the Demised Premises or in the basement of the New Building . . . ." (Def.'s 56.1 ¶ 47; see also Def.'s 56.1 Ex. H.)
Plaintiff commenced this action in New York Supreme Court on June 5, 2008. (Def.'s 56.1 ¶ 1.) The case was removed to this Court on November 18, 2008. (Doc. No. 1.)*fn2 After the conclusion of discovery, Defendant filed its motion for summary judgment and accompanying memorandum of law on September 25, 2009 ("Def.'s Mem."). (Doc. Nos. 25-28.) On October 9, 2009, Plaintiff filed his opposition memorandum ("Pl.'s Opp'n"). (Doc. Nos. 29-31.) Defendant filed an "affirmation" in reply on October 22, 2009 ("Def.'s Reply"). (Doc. No. 33.)
The standards for summary judgment are well settled. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may not grant a motion for summary judgment unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 492 F.3d 89, 96 (2d Cir. 2007). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004); see Anderson, 477 U.S. at 248 (holding that summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party"); Rivkin v. Century 21 Teran Realty LLC, 494 F.3d 99, 103 (2d Cir. 2007). As such, "if 'there is any evidence in the ...