The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
On October 30, 2009, the Honorable Viktor V. Pohorelsky, United States Magistrate Judge, filed a Report and Recommendation on the defendant's motion for summary judgment (the "R & R"), recommending that the motion be granted. On November 13, 2009, plaintiff filed objections to the R & R, and, on November 23, 2009, defendant filed a memorandum in support of the R & R and in opposition to plaintiff's objections. After carefully reviewing the R & R and related submissions, the recommendations concerning defendant's motion for summary judgment are adopted in their entirety.*fn1
In reviewing a magistrate judge's R & R, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Where a party objects to an R & R, the court must engage in de novo review of those portions of the report to which the party specifically objects. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
The court is unpersuaded by plaintiff's objection that the magistrate judge did not apply the proper summary judgment standard. This court agrees that the respective burdens that the parties bear in a summary judgment motion are procedural rather than substantive, and are thus subject to federal rather than state law. See Tingling v. Great Atl. & Pac. Tea Co., No. 02-cv-4196 (NRB), 2003 WL 22973452, at *2 n.2 (S.D.N.Y. Dec. 17, 2003) (applying the federal standard for summary judgment because the issue of what burden a movant bears is "procedural rather than substantive").*fn2 The magistrate judge properly applied the federal standard for review articulated in Rule 56 of the Federal Rules of Civil Procedure as well as Celotex v. Catrett, 477 U.S. 317 (1986) and its progeny, as opposed to the summary judgment standard that would ordinarily apply in a New York state court.
Plaintiff's additional objection to the magistrate judge's finding that defendant did not owe a duty to plaintiff is also unavailing. The evidence adduced in discovery does not support a departure from the general rule under New York law that the breach of a contractual obligation to render services does not give rise to tort liability in favour of a non-contracting party. (See R & R at 9 (citing cases).) The service contract between the defendant and American Airlines belies plaintiff's assertion that the "[d]efendant was the exclusiveprovider of regular safety monitoring, cleaning, and inspection in the subject bathroom," thereby displacing American Airlines' duty to maintain the premises safely. (See Pl.'s Objections at 2.) Rather, American Airlines retained responsibility for plumbing maintenance and repair. (R & R at 3 (citing Motola Decl. Ex. D at 5-10; Motola Decl. Ex. F); see also Def.'s Opp. to Pl.'s Objections at 4-5 (citing other evidence presented in the moving papers which establishes that defendant's duties were of a limited undertaking).) As such, defendant did not owe plaintiff a duty and cannot be held liable to him in tort.
The court notes, that even if plaintiff's objections had merit, they would have no impact on the court's ruling on the instant motion. Assuming, arguendo, that the appropriate for determination of a summary judgment motion were dictated by New York law as opposed to federal law, plaintiff still fails to establish a prima facie case of negligence for the reasons articulated in the R & R. (See R & R 7-8.) Similarly, even if defendant owed plaintiff a duty of care as a result of its contract with American Airlines, plaintiff is unable to show that defendant breached that duty of care by either creating the hazard or by failing to remedy the problem by the negligent performance of its duty. (See R & R at 12-16.)
Wherefore, upon due consideration, the court adopts the R & R in its entirety and grants defendant's motion for summary judgment for the reasons set forth therein. Accordingly, this action is hereby dismissed.
DORA L. IRIZARRY United States ...