Stephanides v. BJ's Wholesale Club, Inc.
Filing
29
ORDER granting 20 Motion for Summary Judgment. So Ordered by Magistrate Judge Cheryl L. Pollak on 4/18/2013. (Klein, Jennifer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------J(
DIMITRA STEPHANIDES,
Plaintiff,
MEMORANDUM
AND
ORDER
12 CV 0083 (CLP)
-againstBJ'S WHOLESALE CLUB, INC.,
Defendant.
-----------------------------------------------------J(
On December 8, 2011, plaintiff Dimitra Stephanides ("Stephanides" or "plaintiff')
commenced this negligence action against defendant BJ's Wholesale Club, Inc. ("B1's" or
"defendant"), seeking damages for the injuries she allegedly suffered on August 12, 2011, while
shopping at the B1's in College Point, New York. On January 6,2012, this action was removed
to federal court. By Notice of Motion dated December 14,2012, defendant moves for summary
judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the grounds that
plaintiff has failed to sustain her burden of proving a prima facie case of negligence against
defendant. For the reasons set forth below, defendant's motion is granted. I
FACTUAL BACKGROUND
On August 12,2011, at approximately 9:30 a.m., plaintiffStephanides was shopping with
her husband, Lazarus Stephanides ("Mr. Stephanides"), at the BJ's located at 137-05 20th
IOn May 31, 2012, the parties consented to the jurisdiction of this Court for all purposes,
including the entry of judgment.
1
Avenue, College Point, New York. (Def.'s 56.1 Stmnt2 ~ 1; PI.'s 56.1 Stmne ~ 1). On that
morning, BJ's opened at 9:00 a.m., no more than 30 minutes before the plaintiffs accident.
(Def.'s 56.1 Stmnt ~ 2; PI.'s 56.1 Stmnt ~ 2). According to the plaintiff, she had completed her
shopping and was waiting near register 16 to pay for her items, when she stepped on a "big
reddish color grape on the light colored floor." (Wiese Aff.4 ~~ 4,5; Ex. 0 5 at 6-7, 14-15, 17,2728,37-38; Def.'s 56.1 Stmnt ~~ 3,4; PI.'s 56.1 Stmnt ~~ 3, 4). When Ms. Stephanides stepped
on the grape, her left foot slipped and "her body spread out causing her waist and knees to twist."
(Wiese Aff. ~~ 5, 6; Ex. 0 at 33-34). She managed to stabilize herself and avoided falling.
(Wiese Aff.
~
6; Ex. 0 at 33-34).
At the time Ms. Stephanides slipped, she was walking behind her husband, who was
pushing the shopping cart. (Def.'s 56.1 Stmnt ~ 7; PI.'s 56.1 Stmnt ~ 7). Mr. Stephanides did
not see the plaintiffs accident. (Def.'s 56.1 Stmnt ~ 8; PI.'s 56.1 Stmnt ~ 8). Although the grape
was dark in color, neither plaintiff nor her husband saw the grape on the floor before plaintiff
crushed it; neither knew how it had gotten there, or how long it had been there. (Def. 's 56.1
Stmnt ~~ 6,9, 10, 11; PI.'s 56.1 Stmnt ~~ 6,9, 10, 11). Although plaintiff and her husband had
water and meat in their cart, they did not have any fruit. (Wiese Aff.
~
4; Ex. 0 at 21).
2Citations to "Defs. 56.1 Stmnt" refer to the Defendant's Local Rule 56.1 Statement of
Material Facts, dated December 12,2012.
3Citations to "PI.' s 56.1 Stmnt" refer to the Plaintiff s Local Rule 56.1 Statement of
Material Facts, dated January 14,2013.
4Citations to "Wiese Aff." refer to the Affirmation of Andrew Wiese, Esq., filed January
15,2013.
5Citations to "Ex. 0" refer to the Deposition Transcript of Dimitra Stephanides, taken on
September 26, 2012.
2
Defendant contends that there is no evidence that B1's either caused the grape to be on
the floor or was aware that the grape was on the floor before plaintiff slipped .. (Def.' s 56.1 Stmnt
~~
12, 13). According to defendant, no one complained about fruit being on the floor in the
vicinity of the plaintiffs accident; there was no dirt or debris near the crushed grape; and there
were no footprints or trackmarks of a shopping cart near the crushed grape. (Def. 's 56.1 Stmnt
~~
14, 15, 16; PI.'s 56.1 Stmnt ~~ 14, 15, 16).
Defendant contends, and plaintiff does not dispute, that B1's Asset Protection Team
conducts a pre-opening inspection of the store to ensure that there is no debris on the floor when
the store opens. (Def.'s 56.1 Stmnt ~~ 17; PI.'s 56.1 Stmnt ~ 17). Similarly, prior to the store
opening, the Front Line Manager inspects the front of the store, including the area where the
accident occurred, and the Senior Manager conducts an investigation of the entire store. (Def.'s
56.1 Stmnt ~~ 18, 19; PI.'s 56.1 Stmnt ~~ 18, 19). Maintenance teams not only clean the store
every morning before it opens, but they inspect the floor as well. (Def.'s 56.1 Stmnt ~~ 20,21;
PI.' s 56.1 Stmnt ~~ 20, 21). Maintenance teams and the Front Line Manager conduct inspections
every 10 to 15 minutes to ensure that the store is clean and all BJ's employees are trained to
patrol the aisles for dangerous conditions. (Def.'s 56.1 Stmnt ~~ 23,24; PI.'s 56.1 Stmnt ~~ 23,
24).
Defendant contends that on the morning of the accident, the floor was clean when the
store .opened. (Def.' s 56.1 Stmnt ~ 22). Defendant further contends that Luis Almonte, who was
working as the Front Line6 Manager that day, inspected the floor every 10 to 15 minutes as part
6Paragraph 25 of Defendant's Rule 56.1 Statement inadvertently refers to Mr. Almonte's
position as the "Front End Manager" rather than the "Front Line Manager." In his deposition,
Mr. Almonte clarified that the "Front Line" refers to "the front end" of the store, where the cash
3
of his routine inspections. (Id.,-r,-r 25,26). Thus, defendant takes the position that there is no
evidence that BJ's was aware of the grape on the floor prior to the time that plaintiff slipped. (Id.
,-r 13).
Plaintiff agrees with much of the defendant's statement of material facts, but disputes that
B1's did not have constructive notice of the grape given its proximity to the registers and the fact
that it was visible. (PI.' s 56.1 Stmnt,-r 12). Plaintiff further argues that because none of the
defendant's witnesses conducted record searches, and no checklist of an inspection prior to the
opening of the store was ever produced, a question of fact exists as to whether B1' s was on notice
or should have been on notice of the grape spill prior to the accident. (PI.' s 56.1 Stmnt,-r,-r 12,
14).
DISCUSSION
Defendant moves for summary judgment on the grounds that plaintiff has failed to
establish a prima facie case of negligence against BJ's under New York law, which requires a
showing that defendant either created the condition or had notice of the condition that allegedly
caused plaintiffs injury.
A. Summary Judgment Standards
It is well-settled that a party moving for summary judgment has the burden of establishing
that there is no genuine issue of material fact in dispute and that the moving party is entitled to
judgment as a matter oflaw. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986);
Thompson v. Giivoje, 896 F.2d 716, 720 (2d Cir. 1990). Since summary judgment is an extreme
registers are located. (Deposition Transcript of Luis Almonti, taken on September 26, 2012
("Ex. I") at 7).
4
remedy, cutting off the rights ofthe non-moving party to present a case to the jury, see Egelston
v. State Univ. CoIl. at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976); Gibralter v. City of New York,
612 F. Supp. 125, 133-34 (E.D.N.Y. 1985), the court should not grant summary judgment unless
it is clear that all of the elements have been satisfied. See Auletta v. Tully, 576 F. Supp. 191, 194
(N.D.N.Y. 1983), aff'd, 732 F.2d 142 (2d Cir. 1984). In addition, "'the inferences to be drawn
from the underlying facts ... must be viewed in the light most favorable to the party opposing
the motion.'" Matsushita Elec. Indus. Co. v. Zenith Radio Com., 475 U.S. 574,587-88 (1986)
(quoting United States v. Diebold. Inc., 369 U.S. 654, 655 (1962)).
Once the moving party discharges its burden of proof under Rule 56(c) of the Federal
Rules of Civil Procedure, the party opposing summary judgment "has the burden of coming
forward with 'specific facts showing that there is a genuine issue for trial. '" Phillips v. Kidder.
Peabody & Co., 782 F. Supp. 854,858 (S.D.N.Y. 1991) (quoting Fed. R. Civ. P. 56(e)). Rule
56(e) "provides that a party opposing a properly supported motion for summary judgment may
not rest upon mere allegation or denials of his pleading." Anderson v. Liberty Lobby. Inc., 477
U.S. at 256. Indeed, "the mere existence of some alleged factual dispute between the parties"
alone will not defeat a properly supported motion for summary judgment. Id. at 247-48
(emphasis added).
In reversing a grant of summary judgment, the Second Circuit noted that the "[t]rial
court's task at the summary judgment motion stage oflitigation is carefully limited to discerning
whether there are any genuine issues of material fact to be tried, not to deciding them."
Ouaratino v. Tiffany & Co., 71 F.3d 58, 65 (2d Cir. 1995) (quoting Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994)).
5
B.
Elements of a Negligence Claim
Plaintiff has alleged that defendant BJ's was negligent in its duty to maintain the
supermarket floor in a condition free from foreign substances. It is well-established that
negligence is conduct that "falls beneath the standard of care which would be exercised by a
reasonably prudent person in similar circumstances at the time of the conduct at issue." Banco
Multiple Santa Cruz, S.A. v. Moreno, 888 F. Supp. 2d 356,374 (E.D.N.Y. 2012) (citing Harper
v. United States, 949 F. Supp. 130, 132 (E.D.N.Y. 1996». A plaintiff seeking to establish a
prima facie case of negligence must show: (1) the defendant owed a duty to the plaintiff to
exercise reasonable care; (2) the defendant breached that duty; and (3) the plaintiff was injured as
a result of the defendant's breach. Infanti v. Scharpf, No. 06 CV 6552, 2012 WL 511568, at *8
(E.D.N.Y. Feb. 15,2012) (citing Harper v. United States, 949 F. Supp. at 132), reconsideration
denied, 2012 WL 824018 (E.D.N.Y. Mar. 9,2012).
The New York Court of Appeals has consistently instructed that "negligence cases by
their very nature do not lend themselves to summary dismissal 'since often, even if all parties are
in agreement as to the underlying facts, the very question of negligence is itself a question for
jury determination.'" McCummings v. New York City Transit Auth., 81 N.Y.2d 923, 926, 613
N.E.2d 559,560 (1993) (quoting Ugarizza v. Schmieder, 46 N.Y.2d 471,474,414 N.Y.S.2d,
304,305,386 N.E.2d 1324, 1325 (1979) and citing Andre v. Pomeroy, 35 N.Y.2d 361,364,362
N.Y.S.2d 131, 133,320 N.E.2d 853, 854 (1974»; see also Cerbelli v. City of New York, No. 99
CV 6846, 2008 WL 4449634, at *23 (E.D.N.Y. Oct. 1,2008) (finding that "[b]ecause negligence
claims usually present significant material factual disputes, they 'typically' are 'not amenable to
summary dismissal''').
6
C. Notice of a Dangerous Condition
Under New York law, a defendant who seeks to dismiss a complaint involving a slip and
fall accident such as this must, on a motion for summary judgment, "make a prima facie showing
affirmatively establishing the absence of notice as a matter oflaw." Dwoskin v. Burger King
Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494, 495 (2d Dep't 1998) (citing cases). However, "the
issue of what burden a movant for summary judgment bears when the ultimate burden of proof
lies with the non-movant is procedural rather than substantive, under the distinction created by
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) and its progeny, and accordingly is subject to
federal rather than state law. Tingling v. Great Atl. & Pac. Tea Co., No. 02 CV 4196, 2003 WL
22973452, at *2 (S.D.N.Y. Dec. 17,2003). Thus, although the defendant bears the first burden
in this case, it may be discharged by showing that there is an absence of evidence to support the
plaintiffs case. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
In response, the plaintiff has the burden of proving a prima facie case of negligence. Id.
To establish a prima facie case, a plaintiff must show the existence of a dangerous or defective
condition, and that the defendant either created the condition, had actual knowledge of the
condition, or had constructive knowledge of it and failed to correct the condition within a
reasonable time. Boutsis v. Home Depot, 371 F. App'x 142, 143 (2d Cir. 2010) (citing Hascup v.
Hascup, No. 96 CV 271, 1997 WL 454295, at *1 (N.D.N.Y. 1997) (citing Lowrey v. Cumberland
Farms. Inc., 162 A.D.2d 777, 778, 557 N.Y.S.2d 689, 690-91 (3d Dep't 1990))).
In establishing the existence of a dangerous or defective condition, a prima facie case may
be based on the unrebutted testimony of an interested witness that is found not to be incredible as
a matter oflaw. See Richardson v. Monadnock Const.. Inc., 23 Misc. 3d 1118(A), 886 N.Y.S.2d
7
72 (2009) (finding that plaintiff had established a prima facie case based in part on plaintiffs
uncontroverted evidence); Dillon v. Motorcycle Safety Sch., Inc., 22 Misc. 3d 1127(A), 880
N.Y.S.2d 872 (2008), affd, 59 A.D.3d 280,872 N.Y.S.2d 669 (lst Dep't 2009) (denying
defendants' motion for summary judgment where plaintiffs unrebutted testimony presented
evidence of defendants' or their employees' gross negligence). Viewing the facts in the present
case in the light most favorable to the nonmoving party, it is reasonable for a jury to find, based
on Ms. Stephanides' unrebutted testimony, that there was a grape on the floor near the register
and that a dangerous or unsafe temporary slippery condition did exist. (PI.' s 56.1 Stmnt ~~ 4-6).
While the mere fact that a floor is wet is not sufficient to establish the existence of a dangerous
condition, Hamer v. United States, 949 F. Supp. at 133 (citing Miller v. Gimbel Bros., Inc., 262
N.Y. 107, 108, 186 N.E. 410,411 (1933)); see also Wessels v. Service Merchandise, Inc., 187
A.D.2d 837, 837, 589 N.Y.S.2d 971,971 (3rd Dep't 1992), "where the defendant causes or
permits a temporary slippery condition to exist, there may be liability." Kelsey v. Port Auth. of
New York & New Jersey, 52 A.D.2d 801, 383 N.Y.S.2d 347, 348 (lst Dep't 1996) (citing
Schumm v. 25th Properties, Inc., 283 N.Y. 723,28 N.E.2d 725 (1940)); see also Weston v.
United States, No. 03 CV 5430, 2007 WL 1871412, at *6 (E.D.N.Y. June 28,2007).
Plaintiff is also '''required to show either actual or constructive notice of the condition
causing the fall and this necessitate[s] proof that defendant created the condition or that it had a
reasonable opportunity to remedy the situation.'" Sosa v. Golub Corp., 273 A.D.2d 762, 763,
710 N.Y.S.2d 171, 172 (3d Dep't 2000) (quoting Grimes v. Golub Corp., 188 A.D.2d 721, 72122,590 N.Y.S.2d 590 (3d Dep't 1992)); see also Adams v. Alexander's Dep't Stores of
Brooklyn, Inc., 226 A.D.2d 130, 131,639 N.Y.S.2d 826, 827 (lst Dep't 1996) (holding that
8
"plaintiff must demonstrate that defendant either created the condition which proximately caused
her injury or that defendant had actual or constructive notice of the hazardous condition and
failed to correct it") (citations omitted).
In considering whether a defendant has actual or constructive notice of a dangerous
condition, the trier of fact should examine "the type of premises involved, and [consider] that
when an owner or operator' ... invites the participation of the public in his operation, necessarily
he must recognize and be ready to discharge a heightened duty arising out of dangers reasonably
to be expected from that participation.'" Kelsey v. Port Auth. of New York & New Jersey, 52
A.D.2d at 801, 383 N.Y.S.2d at 347 (quoting Cameron v. H. C. Bohack Co., 27 A.D.2d 362,365,
280 N.Y.S.2d 483, 486 (2d Dep't 1967)); see also Basso v. Miller, 40 N.Y.2d 233, 241, 386
N.Y.S.2d 564,567,352 N.E.2d 868 (1976) (holding that under New York law, a landowner has a
duty to maintain his property in a reasonably safe condition considering all of the circumstances
including the likelihood and seriousness of the injury, and the burden of avoiding the risk).
Actual notice may be found where a defendant creates the defective condition or receives
reports about it such that actual knowledge can be inferred. Smith v. New York Enter. Am., Inc.,
No. 06 CV 3082,2008 WL 2810182, at *5 (S.D.N.Y. July 21,2008) (citing McHale v. Westcott,
893 F. Supp. 143, 148, (N.D.N.Y. 1995)). A defendant is considered to have constructive notice
of a defect if the defect is "visible and apparent" and in existence "for a sufficient length of time
prior to the accident to permit defendant's employees to discover and remedy it." Silverman v.
United States, No. 04 CV 5647, 2008 WL 1827920, at *14 (E.D.N.Y. Mar. 28,2008) (quoting
Gordon v. American Museum of Natural History, 67 N.Y.2d 836,837-38,501 N.Y.S.2d 646,
647,492 N.E.2d 744, 745 (1986)). "A 'general awareness' that a dangerous condition 'may be
9
present' is legally insufficient to charge defendant with constructive notice of the specific
condition that caused plaintiffs injuries. Id.
In the absence of any evidence showing that the condition existed for a sufficient period
of time prior to the accident, there is "'the possibility that the condition may have emanated only
moments before the accident, through no fault or with no knowledge of the defendant, any other
conclusion being pure speculation.'" Deegan v. 336 East 50th St. Tenants Corp., 216 A.D.2d 59,
60,627 N.Y.S.2d 383, 384 (lst Dep't 1995) (quoting Grier v. R.H. Macy & Co., 173 A.D.2d
238,569 N.Y.S.2d 447 (1st Dep't 1991)). Thus, in cases where the plaintiff is unable to
establish how long the condition causing the accident existed prior to the accident, courts have
entered summary judgment in favor of the defendant.
See,~,
Gordon v. Am. Museum of
Natural History, 67 N.Y.2d 836, 492 N.E.2d 774 (holding that the case should not have gone to
the jury where there was no evidence that anyone, including plaintiff, had seen the piece of paper
on which plaintiff slipped prior to the accident or any evidence to indicate whether the paper had
been there for some period of time); Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671
N.Y.S.2d 494 (finding plaintiffs claim that he slipped and fell on a puddle of water and melting
ice located 3 to 4 feet from a self-service beverage counter insufficient to establish notice where
10 minutes before the accident, an employee inspected the area and did not see the puddle);
Deegan v. 336 East 50th Street Tenants Corp., 216 A.D.2d 59, 627 N.Y.S.2d 383 (reversing
denial of defendant's summary judgment where plaintiff failed to establish how long certain food
waste had existed in front of the defendant's building prior to her fall); Garcia v. N.Y. City Hous.
Auth., 183 A.D.2d 619,584 N.Y.S.2d 20 (1st Dep't 1992) (reversing denial of defendant's
summary judgment motion where plaintiff failed to establish the length of time that the puddle in
10
which she slipped had remained on the stairwell).
The fact that the defendant learns of the condition as a consequence ofplaintiffs accident
is not sufficient to establish notice. Cuntan v. Hitachi KOKI USA, Ltd., No. 06 CV 3898, 2009
WL 3334364 (E.D.N.Y. Oct. 15,2009) (citing Fasolino v. Charming Stores, Inc., 77 N.Y.2d 847,
569 N.E.2d 443,567 N.Y.S.2d 640 (1991)).
D.
Application
Defendant contends that there is no evidence to support a claim that BJ's was responsible
for creating the condition, nor can plaintiff show that BJ's actually knew that the grape was on
the floor. (Def.'s Mem.7 at 6-7). To the contrary, defendant argues that the undisputed facts
establish that there is no evidence that BJ's received any complaints about the grape prior to the
accident and that it was BJ's custom and practice to clean and inspect the store prior to opening
and throughout the day in 10 to 15 minute intervals. (Def.'s 56.1 Stmnt ~~ 14, 17-21,23; PI.'s
56.1
Stmnt~~
14,17-21,23).
B1's further argues that plaintiff cannot proffer any evidence to show that B1's had
constructive notice of the grape in that it was visible and apparent for a sufficient length of time
to allow B1's employees to discover and remedy it. (Def.'s Mem. at 7). Indeed, Customer
Service Manager Dexter Gant testified that he inspected the area where the plaintiff slipped
approximately 30 minutes prior to the accident and saw no debris on the floor. (DeLuca Aff.,8
7Citations to "Def.'s Mem." refer to Defendant B1's Memorandum of Law in Support of
Motion for Summary Judgment, dated December 12,2012.
8Citations to "DeLuca Aff." refer to the Affidavit in Support of defendant's summary
judgment motion by Sal F. DeLuca, Esq., dated December 12, 2012.
11
Ex. H9 at 18-20). The testimony further establishes that the Maintenance Team inspects that area
of the store every 10 to 15 minutes and that the Front Line Managers also conduct inspections
every 10-15 minutes. (Id., Ex. I at 22-25). Defendant notes that plaintiff admitted that she
crushed the grape as a result of stepping on it and that she saw no other debris in the area.
(Def.'s Mem. at 9; Def.'s 56.1 Stmnt ~~ 5, 15; Pl.'s 56.1 Stmnt ~~ 5, 15). Plaintiffs husband
also testified that his wife stepped on the grape, causing it to squish. (Def.' s Mem. at 10 (quoting
DeLuca Aff., Ex. N to at 18-19)).1I
Defendant cites Tingling v. The Great Atlantic & Pacific Tea Co., 2003 WL 22973452, as
support for its argument that summary judgment is appropriate in this case. In Tingling, the
plaintiff fell on the floor and noticed that there were grapes on the floor near where she had
fallen. Id. However, because plaintiff was unable to produce any evidence showing how long
the grapes had been there prior to her fall, the court granted summary judgment in the
defendant's favor. Id. See also Aggrey v. The Stop & Shop Supermarket Co., No. 00 CV 7999,
2002 WL 432388 (S.D.N.Y. Mar. 19,2002) (granting defendant's motion for summary judgment
where plaintiff was unable to show that the grapes were on the floor for an appreciable length of
time prior to her fall). Similarly, in Ortiz v. Pathmark Store, Inc., the court dismissed plaintiffs
case even though she had noticed grapes on the floor in a different area of the store
approximately 15 minutes before her fall. No. 03 CV 40, 2004 WL 2361674 (S.D.N.Y. Oct. 20,
9Citations to "Ex. H" refer to the Deposition Transcript of Dexter Gant, taken on
September 26,2012.
JOCitations to "Ex. N" refer to the Deposition Transcript of Lazarus Stephanides, taken
November 16,2012.
lIDefendant's Memorandum incorrectly cites to Ex. M rather than Ex. N.
12
2004), affd, No. 04 CV 6146, 2005 WL 2899864 (2d Cir. Nov. 3, 2005). The court concluded
that Ms. Ortiz's testimony about grapes in a different location was not sufficient to establish that
there were grapes on the floor near the accident location for any length of time sufficient to
provide constructive notice.
Perhaps most analogous to the instant case, the court in Rojas v. Supermarkets General
Corporation, held that there was no evidence of constructive or actual knowledge and that the
"evidence was just as consistent with a finding that someone had dropped the grapes and crushed
them while pushing a shopping cart through the aisle shortly before plaintiff fell." 238 A.D.2d
393,394,656 N.Y.S.2d 346 (2d Dep't 1997). Any speculation that the grapes had been on the
floor for any length of time was nothing more than speculation and not sufficient to raise a triable
issue of fact. Id. But see Kelsey v. Port Auth. of New York & New Jersey, 383 N.Y.S.2d at 348,
52 A.D.2d at 801 (finding constructive notice where an employee of the store owner was in close
proximity to the dangerous condition).
In arguing that summary judgment should not be granted in this case, plaintiff argues that
defendant has failed to produce any documentary evidence to demonstrate when the area of the
accident had last been inspected. (Wiese Aff.
~
29). Plaintiff contends that the testimony
presented fails to indicate whether either Mr. Carter or Mr. Almonte ever performed a search of
the records to determine whether there was any record of the incident. (ld.
~
30). Moreover,
although defendant presented witnesses who testified about BJ's practice of conducting store
inspections, including the checklist which was prepared by the loss prevention employee and
signed by the manager, plaintiff argues that no checklist has been produced. (Id.
~
31). Plaintiff
complains that, despite her demand for photographs or surveillance tapes of the plaintiff and any
13
repair or inspection records, defendant responded that it was "not in possession of any
photographs or videotapes responsive to this demand," and that "BJ's does not prepare records
concerning employee inspections and/or cleaning of the floor by employees in the area where the
plaintiff s alleged accident took place." (Id. ~ 36, PI.' sEx. B 12). Plaintiff also contends that "the
depositions of Mr. Gant and Mr. Almonte do not reveal whether they performed any record
searches before appearing for their depositions ....There is a distinct difference between
performing a search which reveals no prior notice and not performing a search at all."13 (Id. ~ 37).
Plaintiff argues that even though the witnesses claim that they had no knowledge of any prior
complaints or incidents, the fact that they performed no search for any records means that
defendant cannot meet its burden of establishing lack of notice.
In response to plaintiff s arguments, defendant points to the testimony of Mr. Almonte,
indicating that no photographs were taken of the accident, nor was the accident captured on B1's
surveillance system. (Def.'s Reply14 at 10 (citing Ex. I at 60-61)). Thus, defendant argues that
no adverse inference should be drawn from the fact that BJ's did not produce such evidence.
(Id.) Similarly, to the extent that plaintiff argues that the defendant's witnesses failed to make
any reference to performing record searches before their depositions, defendant contends that this
12Citations to "PI.'s Ex. B" refer to defendant's Response to Plaintiffs Demand for
Production of Documents, dated August 27,2012.
Although plaintiff cites to Plaintiffs Exs. H, I, J, K, L, and M to support her assertion
that "none of the defendant[']s witness[es] performed any record searches" (Wiese Aff. ~~ 12,
14,22), plaintiff does not cite to any particular parts of these exhibits. Nevertheless, based on the
Court's review of the documents cited, there is no evidence that Mr. Gant or Mr. Almonte were
ever asked whether they performed a records search.
13
14Citations to "Def.'s Reply" refers to the Defendant B1's Reply Memorandum of Law in
Support of Motion for Summary Judgment, dated January 25,2013.
14
constitutes "a desperate attempt to create an issue of fact where none exists." (Id. at 13). B1's
witnesses, the Front Line Manager, Luis Almonte, and the Front Line Supervisor, Dexter Gant,
each had an independent recollection of working that day and dealing with the plaintiff. (Id. at
14). Their testimony establishes that at the time they performed their inspections, which was
minutes before the accident, the floor was clean. (Id.) Since BJ's prepares no records that would
reflect this, one way or the other, there would be no records to check.
B1's also argues that it does not prepare inspection or cleaning logs, nor did plaintiff ever
demand production of the pre-opening checklist, even after the depositions of Mr. Almonte and
Mr. Gant. (Id. at 11). Even if she had demanded production of the checklist, defendant argues
that the checklist would not have provided evidence supportive of plaintiff's position because it
is clear that the condition which caused plaintiff to slip - the grape - was clearly transitory; the
fact that it may not be mentioned on the checklist is of no assistance in determining whether there
was notice or not.
Moreover, BJ's contends that to the extent that plaintiff now seems to be seeking
additional discovery, she has failed to comply with the requirements of Federal Rule of Civil
Procedure 56(d), 15 in that she has not submitted an affidavit explaining how the discovery she
seeks would create an issue of fact or is necessary in order for her to adequately respond to the
motion for summary judgment. See Burlington Coat Factory Warehouse Corp. v. Esprit De
Corp., 769 F.2d 919,926 (2d Cir. 1985); see also Paddington Partners v. Bouchard, 34 F.3d
1132, 1138 (2d Cir. 1994). Discovery requested pursuant to Rule 56(d) is "designed to enable a
15 Although defendant's papers reference Rule 56(t), the Rule was amended in 2010 and
former subdivision (t) became 56(d).
15
plaintiff to fill material evidentiary gaps in its case in an effort to withstand summary judgment."
Capital Imaging Assocs .. P.C. v. Mohawk Valley Med. Assocs .. Inc., 725 F. Supp. 669, 680
(N.D.N.Y. 1989). The plaintiff must not only demonstrate that the material sought is "germane"
but also that "it is neither cumulative or speculative." Paddington Partners v. Bouchard, 34 F.3d
at 1138.
Here, although plaintiff argues that discovery is necessary because the defendant's
witnesses did not indicate if they had searched for records and because no checklists have been
provided, plaintiff has not indicated in affidavit form that this information, even if it exists,
would be "germane" to her claim that the defendant was on notice of the dangerous condition.
Accordingly, the Court denies the motion under Rule 56(d) for additional discovery.
In ruling on a motion for summary judgment, this Court must '''assess whether there are
any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences
against the moving party. '" Anderson v. Pathmark Stores. Inc., No. 96 CV 3672, 1999 WL
349707, at *3 (S.D.N.Y. May 27, 1999) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d
Cir. 1986), cert. denied, 480 U.S. 932 (1987)) (denying summary judgment to defendant in slip
and fall case in a store where "at least two possibilities" could explain the existence of a salad oil
spill and holding that "[i]t is the province of the jury, not the Court, to decide what actually
happened"); see also Olesky v. Nat'l R.R. Passenger Corp., No. 97 CV 3529, 1999 WL 595637
(S.D.N.Y. Aug. 5, 1999) (denying defendant's motion for summary judgment in slip and fall case
where issue of fact existed as to whether defendant created or had notice of hazardous condition);
Goddard v. Delta Airlines. Inc., No. 91 CV 2254,1997 WL 12022 (E.D.N.Y. Jan. 8,1997)
(denying defendant's motion for summary judgment where issues of fact existed as to whether
16
defendant created the hazardous condition and had actual or constructive notice of the condition).
The Court recognizes that summary judgment motions in negligence cases are rarely
granted by New York courts due to the existence of multiple factual issues which must be
decided by a trier of fact.
See,~,
Olesky v. Nat'l R.R. Passenger Corp., 1999 WL 595637, at
*2 (citing Selvaggi v. Grand Union Co., No. 96 CV 2077, 1997 WL 786943, at *2 (S.D.N.Y.
Dec. 22, 1997) (collecting cases)). However, in this case, there are no competing inferences that
may be drawn from the evidence. Plaintiffhas not tendered any evidence which, ifviewed in the
light most favorable to plaintiff and affording plaintiff all reasonable inferences, would allow the
trier of fact to reasonably infer notice on the part of defendant. See DiFranco v. Golub Corp.,
241 A.D.2d 901,660 N.Y.S.2d 514 (3d Dep't 1997); accord Ellis v. Cnty. of Albany, 205 A.D.2d
1005,613 N.Y.S.2d 983 (3d Dep't 1994) (holding that even in the absence of direct evidence
regarding proximate cause, the court may find sufficient proof of negligence based upon the
logical inferences to be drawn).
Here, plaintiff has established that the plaintiff slipped on a grape near the register, where
people check out. She does not dispute the defendant's assertion that no one filed a complaint or
brought the condition to the attention of anyone at BJ's. She also does not dispute the procedures
that BJ's employees have testified to regarding the various inspections that they conduct prior to
the opening of the store or during the day. Given the time that the accident is alleged to have
occurred, less than an hour after the store opened, and given the absence of any evidence that the
store was on notice of the existence of the grape, the Court grants defendant's motion for
17
summary judgment. 16
CONCLUSION
For the reasons stated herein, defendant's motion for summary judgment is granted in its
entirety. The Clerk of Court is directed to close the case.
SO ORDERED.
Dated: Brooklyn, New York
April 17, 2013
/s/ Cheryl L. Pollak
es Magistrate Judge
Eastern District of New York
16Plaintiff also argues that there is a triable issue of fact as to the condition of the floor at
the time of plaintiff's accident. (PI.' s Mem. " 44-64). Having found that plaintiff could
establish that a dangerous condition existed, but that she has failed to present any evidence that
defendant created or had notice of the condition, the Court need not address this aspect of
plaintiff's argument. Similarly, plaintiff has requested that the Court disregard as evidence the
Affidavit of defense witness Merida Cabrera, because Ms. Cabrera was never disclosed as a
witness until the present motion was filed. Since the Court finds that the record, even without
Ms. Cabrera's Affidavit, clearly shows that summary judgment is warranted in favor of the
defendant, the Court finds no need to rule on plaintiff's request, and has not considered Ms.
Cabrera's Affidavit in connection with this motion.
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?