The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Plaintiff Yamina Bensbeur, as administratix of the estate of decedent Azz-El Islam Bensbeur ("decedent"), brings this wrongful death action against the Rihga Royal Hotel a/k/a the New London Hotel ("the Hotel" or "defendant"), alleging that the Hotel, due to its own negligence and recklessness, allowed a dangerous and unsafe condition to exist by failing to provide decedent with proper protection and security and by supplying narcotics and alcohol to the decedent's room. Defendant has moved for summary judgment, claiming that there are no genuine issues of material fact and plaintiff is unable to establish a prima facie case of negligent supervision. (See Doc. No. 33.) Plaintiff has cross-moved for summary judgment on the same issue. (See Doc. No. 37.) For the reasons set forth below, the Court grants defendant's motion in its entirety, denies plaintiff's cross-motion, and dismisses this action.
Plaintiff commenced the present action in the Supreme Court of the State of New York, County of Kings on June 17, 2008. (See Notice of Removal (Doc. No. 1) ¶1.) On July 16, 2008, pursuant to 28 U.S.C. §§ 1441 and 1446, defendant removed the case to this Court as an action over which the Court has original diversity jurisdiction under 28 U.S.C. § 1332. (Id. ¶¶ 5, 10-11.)
The factual background of the case is as follows. On July 11, 2006, a guest by the name of Timothy DeAngelis (a/k/a Tom Parker) checked into the Hotel and was given suite 2110. (Def. 56.1 Stmt. (Doc. No. 34) ¶ 1.) Although registration records reflect a party of one, the Hotel's CCTV surveillance from that day reflects that DeAngelis was accompanied by a young female and male later identified to be his daughter Elizabeth DeAngelis and her boyfriend, decedent Azz-El Islam Bensbeur. CCTV surveillance reflects that all three guests were escorted to suite 2110 by the lobby porter. (See Hotel Registration Records (Doc. No. 35, Attach. 12); CCTV Surveillance Incident Narrative Report (Doc. No. 39, Attach. 5).) According to room service records, later in the evening on the same day, the following four deliveries of food and alcohol were made to suite 2110 between 7:24 p.m. and 9:45 p.m.: 1) a bottle of wine at 7:24 p.m.; 2) various food items at 7:41 p.m.; 3) three Coronas and three Budweisers at 7:45 p.m.; and 4) one bottle of wine and various food items at 9:45 a.m.. (Hotel Service Tickets (Doc. No. 35, Attach. 13).) All four deliveries were charged to and paid by DeAngelis. (Record of Room Charges (Doc. No. 35, Attach. 14).) Between 9:30 p.m. and 10:55 p.m. approximately, lobby porter Phil Lenzy made three trips to suite 2110 for the following purposes: 1) to deliver prescription drugs picked up from a pharmacy; 2) to get money from DeAngelis to pick up cigars and soda; and 3) to deliver the cigars and soda. (Def. 56.1 Stmt. ¶¶ 19-29.) Mr. Lenzy testified at his deposition that on his second trip to suite 2110, he entered the room and observed a young girl sleeping in a bed and an older man and a young male seated at the table. (Id. ¶ 27.)
Between 1:00 a.m. and 2:00 a.m. on July 12, 2006, a housekeeping attendant at the Hotel by the name of Kazi Hossain went to suite 2110 at the request of his manager to clean the room. Mr. Hossain heard loud music playing when he knocked on the door. Upon entering, he observed empty wine bottles and food, a broken lamp, vomit next to the bed and a man lying face down on the bed "in the proper position." (Id. ¶¶ 34-44; Hossain Dep. (Doc. No. 35, Attach. 8) at 56, 147.) Mr. Hossain testified at his deposition that the older man in the room told him the vomit came from the young man, who had thrown up from drinking too much. The man also told Mr. Hossain not to make the bed because the boy was drunk. (Hossain Dep. at 60, 147-48.) When cleaning the room, Hossain retrieved from the garbage a cell phone that the young woman had asked him to help her find, and further observed in the trash one medicine vial and some underwear; he could not recall if there were pills in the vial, and he threw the garbage bag away. (Id. at 70.)
Security officers at the Hotel were dispatched to suite 2110 twice, at 1:23 a.m. and 2:04 a.m. in response to noise complaints from neighbors. (Def. 56.1 Stmt. ¶¶ 61-68.) The first security officer dispatched to suite 2110 reported that a female had answered the door, told him that she had vomited but everything alright, and lowered the music at his request. (See Laskas Investigative Report (Doc. No. 35, Attach. 16).) The second security officer dispatched at 2:04 a.m. was told by a female that the guests in suite 2110 were going to sleep and found no music coming from the room when he returned to the 21st floor ten minutes later. (See Carrasquillo Investigative Report (Doc. No. 35, Attach. 17).)
In the afternoon of July 12, 2006, security officer Rene Nunez was patrolling the second floor of the Hotel when he witnessed a distressed girl talking to the concierge. The girl told him that her father and boyfriend had been drinking the night before, that her boyfriend was passed out, and that her father was still drunk and potentially aggressive. (Nunez Dep. (Doc. No. 39, Attach. 4) at 41, 43.) At 1:10 p.m. on July 12, the director of security at the Hotel, Dominic Pezzo, entered suite 2110 in response to a code green medical emergency call from security officer Nunez. (Pezzo Dep. (Doc. No. 35, Attach. 9) at 43.) Upon entering, a young girl was hysterically crying and saying that her boyfriend is dead. In the bathroom, Mr. Pezzo found DeAngelis standing naked with a towel over his head and the decedent lying on the floor, blue in the body and appearing to be dead. (Def. 56.1 Stmt. ¶¶ 50-54; Pezzo Dep. at 51.) Mr. Pezzo testified that DeAngelis said he had just given decedent a shower and insisted that decedent was not dead. (Pezzo Dep. at 54.) The police arrived within three minutes, as Mr. Pezzo had already called 911 prior to entering the room. (Id. at 57.)
On July 13, 2006, an autopsy performed on decedent noted his age as 18 and determined the cause of death to be acute intoxication due to combined toxic effects of alprazolam, ethanol, and oxycodone. (Autopsy Report (Doc. No. 35, Attach. 11).)
Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In deciding a summary judgment motion, a district court must draw all reasonable inferences in favor of the non-moving party. See id. at 249 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)); Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 137 (2d Cir. 1998). Thus, the court must not "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 America v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2007) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)). Any evidence in the record of any material fact from which an inference could be drawn in favor of the non-moving party precludes summary judgment. See Castle Rock Entm't, 150 F.3d at 137.
Once the movant has demonstrated that no genuine issue of material fact exists, such that it is entitled to judgment as a matter of law, then "the non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). "Conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,' and more than 'some metaphysical doubt as to the material facts.'" Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (citing Anderson, 477 U.S. at 252; Matsushita, 475 U.S. at 586.) Instead, the non-moving party must present "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. ...