The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
On December 22, 2009, plaintiff commenced this negligence action in New York State Supreme Court, Delaware County. On February 5, 2010, defendant filed a Notice of Removal from Delaware County Supreme Court and removed the action to this Court. See Dkt. No. 1. On August 11, 2010, plaintiff filed an amended complaint. See Dkt. No. 8.
Currently before the Court is defendant's motion for summary judgment. See Dkt. No. 14.
On April 30, 2009, plaintiff was injured when the top portion of a dressing room door in defendant's store dislodged and struck her head and right shoulder. On that date, plaintiff entered defendant's store with her daughter Paige. Plaintiff and Paige were shopping when Paige spotted some clothes that she wanted to try on.
Plaintiff and Paige then went to the "Children's" dressing room so that Paige could try on the clothing. As plaintiff was leaving the fitting room to retrieve a different size of a pair of shorts for Paige to try on, the top portion of the door to the fitting room detached and struck plaintiff on her head and shoulder. The alleged accident occurred at approximately 8:00 p.m.
As of April 30, 2009, defendant had established a custom and procedure for performing fitting room inspections every day, on an hourly basis. Defendant's employees performed these fitting room inspections for the purpose of maintaining their appearance, cleanliness, and suitability for use. See Dkt. No. 14-21 at ¶ 25; Dkt. No. 15-2 at ¶ 25. Defendant's custom and procedure for inspecting the fitting rooms was as follows: open the fitting room door; enter the fitting room; close the fitting room door; inspect for clothing, merchandise, debris, garbage and/or safety issues; clean up any garbage or debris; and return merchandise to the shopping area. See Dkt. No. 14-21 at ¶ 26; Dkt. No. 15-2 at ¶ 26. Upon completing an inspection of a fitting room, the custom and procedure was for employees to record the completion of their inspection in a "Fitting Room Log." If an employee discovered an out of alignment or damaged fitting room door during a fitting room inspection, the custom and procedure was for that employee to notify the manager on duty and store maintenance personnel, and to then place an out of order sign on the fitting room door.
In addition to the hourly inspections conducted by store employees, maintenance personnel performed daily inspections of the fitting rooms in order to check the structural integrity of the fitting room doors, the frames, and the hardware within the rooms. In addition to the employee inspections and the inspections by maintenance personnel, Johnson Control Inc. ("JCI") conducted monthly inspections of defendant's store. The purpose of these inspections was to identify safety issues within the store.
During its monthly inspections of defendant's store, JCI inspected all fitting rooms and fitting room doors. None of the maintenance and inspection records demonstrate a reported problem or defect with the fitting room door that allegedly injured plaintiff; however, there are no specific records regarding the inspection of the fitting room doors and hardware. See Dkt. No. 14-21 at ¶ 48; Dkt. No. 15-2 at ¶ 48.
The parties dispute whether there were ever any complaints regarding the functioning of any of the fitting room doors in the "Children's" fitting room prior to April 30, 2009. See Dkt. No. 14-21 at ¶ 33; Dkt. No. 15-2 at ¶ 33. Moreover, the parties dispute whether defendant's maintenance personnel ever performed any repairs on the "Children's" fitting room doors prior to this incident or whether maintenance was ever required to tighten the screws connecting the door to its frame. See Dkt. No. 14-21 at ¶ 34; Dkt. No. 15-2 at ¶ 34. Although defendant asserts that plaintiff did not notice anything unusual about the dressing room door prior to the incident, plaintiff "testified that when she tried to shut the door to the dressing room she noticed that the door was 'a little hard to shut' in that she 'had to kind of lift it up to get it to shut' and it wouldn't latch closed." See Dkt. No. 14-21 at ¶ 13; Dkt. No. 15-2 at ¶ 13.
On June 6, 2011, defendant filed the present motion for summary judgment. See Dkt. No. 14. In its motion, defendant generally alleges that (1) it did not breach its duty to maintain its store in a reasonably safe condition because it neither created nor had actual or constructive notice of the defect that injured plaintiff; (2) plaintiff cannot make the evidentiary showing that is required to submit this case to the jury on a res ipsa loquitur theory; and (3) plaintiff's expert's report cannot be used to create a triable question of fact because it is replete with baseless assertions, misleading statements, and conclusory opinions. See Dkt. No. 14-2.