Doona v. Onesource Holdings Inc

Decision Date07 January 2010
Docket NumberNo. 06-CV-00894 (DLI)(VVP).,06-CV-00894 (DLI)(VVP).
Citation680 F.Supp.2d 394
PartiesMaurice F. DOONA, Plaintiff, v. ONESOURCE HOLDINGS, INC., Defendant.
CourtU.S. District Court — Eastern District of New York


Keith A. Gilman, Simon & Gilman, LLP Forest Hills, NY, for Plaintiff.

David H. Motola, Lester Schwab Katz &amp Dwyer LLP, New York, NY, for Defendant.


DORA L. IRIZARRY, 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 plaintiffs objections. After carefully reviewing the R & R and related submissions, the recommendations concerning defendant's motion for summary judgment are adopted in their entirety.1

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 plaintiffs 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").2 The magis- trate 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, All U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) and its progeny, as opposed to the summary judgment standard that would ordinarily apply in a New York state court.

Plaintiffs 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 402 (citing cases).) The service contract between the defendant and American Airlines... belies plaintiffs assertion that the "[defendant was the exclusive provider 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 398-99 (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 plaintiffs 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 401.) 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 403-06.)

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.



POHORELSKY, United States Magistrate Judge:

The plaintiff, Maurice F. Doona, brings this personal injury action against the defendant, OneSource Holdings, Inc., alleging that he suffered severe injury as a result of the defendant's negligence in maintaining the restroom at Mr. Doona's place of employment. See 28 U.S.C § 1332. Having completed discovery, the defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(b), and Judge Irizarry has referred the defendant's motion to the undersigned for a report and recommendation. The defendant's principal argument on this motion is that there is no evidence it had notice of the condition that led to the plaintiffs injury. For the following reasons, the undersigned recommends that the defendant's summary judgment motion be GRANTED and that the action be dismissed.


Mr. Doona is an aircraft maintenance technician employed by American Airlines, Inc. ("American"). See Deposition Transcript of Maurice Doona ("Doona Dep.") at 10, annexed as Ex. C to Motola Declaration In Support Of Motion For Summary Judgment ("Motola Decl."), dated April 4, 2007. During the relevant period, Mr. Doona worked at John F. Kennedy International Airport in Queens, New York ("JFK Airport"), where American maintains several hangars for storing and servicing airplanes. (Doona Dep. at 13-14, 22). On June 23, 2005, Mr. Doona was assigned to a shift at Hanger Number 10, Bay Number 3, beginning at 9:00 p.m. and scheduled to work through 5:30 a.m. (Doona Dep. at 22-23). At approximately 9:10 p.m., Mr. Doona entered the men's restroom in Hangar 10, Bay 3. (Doona Dep. at 22, 26). The restroom was open to employees, visitors, contractors, and others authorized to be present in the hangar. (Doona Dep. at 26-27). As Mr. Doona entered the restroom and was proceeding toward a urinal to his right, he slipped on a puddle of water approximately two and one-half to three feet from the entrance to the lavatory, and fell to floor. (Doona Dep. at 27-29, 32). He had not seen anything on the floor prior to the accident, and estimates that the puddle was two feet by one and one-half to two feet in area. (Doona Dep. at 28). Mr. Doona was unable to say how long the puddle had been there, how it had gotten there, or whether anyone had complained about it or reported it. (Doona Dep. at 33). Mr. Doona testified that he had observed puddles on the restroom floor approximately seven times over a period of fourteen years prior to his accident, but had never reported the puddles to anyone. (Doona Dep. at 31-32). Nor was Mr. Doona aware of any complaints others might have made about the condition of the restroom floor. (Doona Dep. at 32). Mr. Doona was forced to miss work, and received extensive medical treatment, including surgery for the injuries he sustained to his wrist and hand, but the extent of his injuries is not implicated by the defendant's instant motion. (Doona Dep. at 40-63).

At the time of the incident, the defendant OneSource had a contract with American to provide "janitorial services" at the American facilities at JFK, including in the restrooms where the plaintiff was injured. See Deposition Transcript of Gonzalo Beltran ("Beltran Dep.") at 5-10, annexed as Ex. D to Motola Decl.; Services Agreement, annexed as Ex. F to Motola Decl. The contract required OneSource to clean offices, restrooms, and the hangar floors. (Beltran Dep. at 7). OneSource employees were continuously present 24 hours a day and 7 days a week to, among other things, clean the restrooms in Hangar 10. (Beltran Dep. at 6, 8-9). Mr. Beltran testified that the person assigned to clean the restroom in Hangar 10, Bay 3, would be expected to enter the restroom and clean it between five and eight times over that employee's eight-hour shift, or to police it roughly once an hour for spills and to ensure that the toilets were clean and the floors were dry. (Beltran Dep. at 11-12). Mr. Beltran estimated that on the day of Mr. Doona's accident, OneSource employees would have manned three separate shifts at Hangar 10: from 1:30 p.m. to 10:00 p.m., from 9:30 p.m. to 6:00 a.m, and from 5:30 a.m to 2:00 p.m. (Beltran Dep. at 8-9, 14).

OneSource employees when cleaning the restrooms, used a wet mop, a bucket, and a cart equipped with cleaning fluids and a sign indicating that the floor was wet. There is no evidence that such a sign was present when Mr. Doona injured himself. (Beltran Dep. at 11-13). Mr. Beltran also testified about radio procedures available to American employees to notify OneSource in the event of a puddle on the restroom floors. (Beltran Dep. at 16-17). He did not recall, however, having ever received any such complaints prior to June 2005. (Beltran Dep. at 16-17). Lastly, Mr. Beltran testified that OneSource was not responsible for maintaining the plumbing in American's restrooms; American retained responsibility for that task, and in the event of a plumbing leak, a OneSource employee would typically post a sign in the restroom until American had addressed or repaired the problem. (Beltran Dep. at 19). The janitorial coverage specified in the services agreement does not include plumbing maintenance or repair. See Services Agreement, Attachments 1A, 1C, IF. Mr. Beltran was not aware of the puddle on June 23, 2005, and stated that he never observed any puddles in the Hangar 10 restrooms prior to Mr. Doona's accident. (Beltran Dep. at 21-22).

I. Summary Judgment Standard

The defendants' motion for summary judgment will be granted...

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