Young v. Morrison Management Specialists, Inc.

Filing 36

ORDER granting 27 & 28 Motions for Summary Judgment. For the reasons set for in the attached Memorandum & Order, Defendants motions for summary judgment are granted. The Clerk of the Court is directed to dismiss the case with prejudice. Ordered by Magistrate Judge Ramon E. Reyes, Jr. on 2/1/2017. (Naidich, Zachary)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-cv-4261 (RER)

_____________________

THELMA YOUNG,
Plaintiff,
VERSUS

MORRISON MANAGEMENT SPECIALISTS, INC. AND CROTHALL HEALTHCARE INC.,
Defendant.
___________________
Memorandum & Order
February 1, 2017
___________________

Cardinal Cook Health Care Center (“TCC”)
in New York City. (Dkt. No. 27-3 (Crothall
Rule 56.1 Statement (“Cr. R. 56.1”)) at ¶ 1).
On December 1, 2012, Young slipped and
fell in the TCC women’s locker room,
resulting in physical injury. (Cr. R. 56.1 ¶ 2).
Young commenced a personal injury action
against the Defendants, alleging her slip-andfall was caused by the Defendants’
negligence. (Amended Complaint ¶ 1). The
Defendants now move for summary
judgment pursuant to Rule 56. (Dkt. No. 27
and 28). In support of their motions, the
parties have submitted Rule 56.1 Statements
of undisputed facts, party and non-party
depositions, and additional relevant exhibits.
(Dkt. No. 27-2, 27-3, 28-2, 28-3, 31-1, 31-2,
32-1, 32-2). Based on the evidence submitted
by the parties, and their Rule 56.1
Statements, the undisputed facts are as
follows:

RAMON E. REYES, JR., U.S.M.J.:
On June 13, 2014, Thelma Young
(“Young”) commenced a personal injury
action in New York State Supreme Court,
Kings
County,
against
Morrison
Management Specialists, Inc. (“Morrison”).
(Dkt. No. 1). Following removal to Federal
Court, (Dkt. No. 1), Young amended her
complaint, naming Crothall Heatlhcare, Inc.
(“Crothall”) as an additional defendant, (Dkt.
No. 15 (“Amended Complaint”)). Morrison
and Crothall, (collectively the “Defendants”),
filed separate motions for summary judgment
pursuant to Fed. R. Civ. P. 56. (Dkt. No. 27
and 28). For the following reasons, the
Defendants’ motions are granted in full.
BACKGROUND
In 2012, Young was employed as a
Certified Nursing Assistant at Terrance

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I.

(“Decl. in Mr. Opp.”)) Ex. C - Deposition
Testimony of Wanda Manzueta at 70:9-23).
Whether Morrison permitted its employees to
eat lunch in the locker room remains in
dispute. (Morrison Decl. - Ex B. Deposition
Testimony of Mitchell Jayson at 64:1066:25).

The Parties

In 2007, Crothall entered into a
contract with TCC to provide housekeeping
and linen services, (Cr. R. 56.1 ¶ 15), which
was renewed four months prior to Young’s
accident, (Id. at ¶ 17). Under the terms of the
contract as it existed in December 2012, (the
“Contract”), Crothall was required to
maintain six employees at TCC. Id. at ¶ 19.
While
these
employees’
precise
responsibilities are in dispute, the parties
agree that actual cleaning services were
provided by TCC staff under Crothall’s
training and supervision. (Dkt. 32-2 (Young
Response to Cr. R. 56.1 Statement (“Pl. Res.
Cr. R. 56.1”)) at ¶¶ 20, b3). Responsibility for
hiring, firing, disciplining, and paying TCC
housekeeping employees is similarly
disputed. Id. at ¶ 21. In addition to allocating
staffing and supervising responsibility, the
Contract provided schedules for specific
housekeeping services. Id. at ¶ 18. Under
Schedule B, the locker room was to be
cleaned seven times per week, although no
specific cleaning times were mandated. (Dkt.
No. 27-2 (Declaration of Charles C. Eblen in
Support of Crothall (“Crothall Decl.”), Ex. B.
- the Contract) at 49; Pl. Res. Cr. R. 56.1 ¶
24).

II.

The Accident

On December 1, 2012, Young was
scheduled to work the 3pm - 11pm shift at
TCC. (Cr. R. 56.1 ¶ 2). Upon arriving at
work, she went to the women’s locker room
in the basement of the main building, which
is accessible by hospital staff as well as by
Crothall and Morrison employees. Id. at ¶ 34. Once there she changed into her work
cloths, consisting of hospital scrubs and
Crocs. Id. at ¶¶ 3, 5. After changing, Young
walked toward the bathroom when her left
foot slipped out from under her, causing her
to fall backwards and strike her head and
back on the floor. Id. at ¶ 7.
According to Young, her slip-and-fall
was caused by a greasy or oily substance on
the locker room floor. (Amended Complaint
¶¶ 1, 18). While she never saw the substance
that caused her fall, (Cr. R. 56.1 ¶ 9), she
testified to finding a grease or oil stain on her
clothing. Id. at ¶ 8. She further testified that
she “could feel the grease on [her] hands”
while lying on the floor and found additional
grease or oil on her buttocks, lower pants, and
shoes. (Morrison Decl. Ex A - Deposition
Testimony of Thelma Young (“Young”) at
50:3-5; 52:4-7). The source of the offending
substance is in dispute. Young claims the
substance was dropped by Morrison
employees, who were eating lunch in the
locker room, between 11:00 and 11:30am. Id.
at 78:6-79:14. She basis this contention on a
conversation she had with a co-worker,
Michelle Winter (“Winters”), one or two
months after the accident. Id. at 134:21-25.

Like Crothall, Morrison provided
services at TCC at the time of the accident
pursuant to the terms of a contract. (Dkt. No.
28-3 (Morrison Rule 56.1 Statement (“Mr. R.
56.1”)) at ¶ 15). Under the terms of its
contract, Morrison provided food services at
TCC. Id. at ¶ 15. Unlike Crothall, Morrison
hired its own staff rather than utilizing TCC
employees. (Dkt. No. 28-2 (Declaration of
Charles C. Eblen in Support of Morrison
(“Morrison Decl.”), Ex C. - Agreement
between Morrison and TCC) at 1). Morrison
provided its staff free meals in the TCC
cafeteria. (Dkt. No. 31-1 (Declaration of S.
Joonho Hong in Opposition to Morrison

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At the conclusion of her deposition,
Winter wrote “after reading this I feel like I
was pressured. Let me be clear. I did not see
the accident [or] any grease. That’s my final
statement…” (Winter Acknowledgement).

During her deposition, Winter
initially testified that she did not recall the
accident. (Morrison Decl. Ex. B. - Deposition
Testimony of Michelle Winter (“Winter”)
11:21-12:3) (“Q: Do you recall observing an
accident involving Ms. Young? A: I don’t
remember that. Q: Do you remember
observing an accident involving someone
slipping in the women’s locker room? A: I
don’t remember.”). Winter also denied seeing
anyone eating in the locker room. Id. at 14:815:5 (“Q: On or before December 1, 2012,
had you ever observed anyone eating lunch in
the locker room? A: I don’t recall that
now….Q: Do you recall telling anyone that
you had seen staff from the kitchen eating
greasy food from the locker room at any
time? A: No, I don’t remember that.”).

In support of her claims, Young has
also produced an affidavit by Winter
discussing the source of the greasy or oily
substance. (Morrison Decl. Ex. D. - Winter
Affidavit (“Affidavit”)). The Affidavit,
written by Young’s attorney, is unsigned and
no signed version has been provided to this
Court. Id. During her deposition, Winter was
asked about the Affidavit and acknowledged
receiving a copy of it, but never indicated she
had signed or otherwise endorsed of it.
(Winter 26:17-28:16).
DISCUSSION

Ultimately, after having her memory
refreshed, Winter testified to being present at
the time of Young’s accident - but professed
she had not witnessed it - and to seeing
someone drinking a beverage in the locker
room - but not to food or to a spill. Id. at
33:12-34:3; 63:9-11. She acknowledged that
people, including Morrison staff, often ate in
the locker room but did not testify to anyone
eating on the day of the accident. Id. at 43:818. She emphatically testified to having no
memory of the condition of the floor just
prior to or after the accident. Id. at 72:8-11.
The closest she came to corroborating
Young’s version of events was to state “I
think there was a space there, so everyone
was walking around the space[.]” Id. at
39:23-40:8. She could not recall whether the
floor was cracked, or whether grease or
something else entirely was on the floor. Id.
at 39:23-40:8 (“I think there was a crack or
something there, you know. Just to remember
if there was a grease or where was the crack.
I think there was a crack there, but I’m not
remembering.”).

I

Summary Judgment Standard

Under Rule 56, summary judgment
should be entered in favor of the movant
when “there is no genuine dispute as to any
material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P.
56(a). For the purposes of Rule 56, a fact will
be deemed material if it “might affect the
outcome of the suit[.]” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L.Ed.2d 202 (1986). When
resolving a Rule 56 motion, the evidence
should be viewed in the light most favorable
to the non-moving party and the court must
make all reasonable inferences in that party’s
favor. See Doona v. OneSource Holdings,
Inc., 680 F.Supp.2d 394, 400 (E.D.N.Y.
2010) (summary order). It is the movant’s
burden to establish the absence of any
genuine dispute of material fact. See
Goenaga v. March of Dimes Birth Defects
Foundation, 51 F.3d 14, 18 (2d Cir. 1995).
This burden can be satisfied either by
presenting uncontroverted evidence entitling

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the movant to judgment or, where the nonmovant “will bear the ultimate burden of
proof at trial[, by] point[ing] to an absence of
evidence to support an essential element of
the nonmoving party’s claim.” 1 Goenaga, 51
F.3d at 18.; see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).

summary judgment. See Molina v. United
States, No. 11-CV-04097 (ERK), 2015 WL
4394045, at *6 (E.D.N.Y. July 16, 2015).
Additionally, there must be more than
“a scintilla of evidence in support of the
plaintiff’s position[,]” as courts have
consistently held that “evidence on which the
jury could reasonably find for the plaintiff”
is required to survive a motion for summary
judgment. Anderson, 477 U.S. at 252
(emphasis added). The plaintiff’s burden of
production is lowered when the motion
alleges failure to establish an essential
element of the claim. See, 51 F.3d at 18
(“When the defendant moves for summary
judgment on the ground that there is an
absence of evidence to support [an] essential
element, the plaintiff’s burden of producing
such evidence in opposition to the motion is
de minimus.”). However, absent some
evidence from which a reasonable jury could
find in the plaintiff’s favor, a dispute of fact,
even though material, is not genuine and
therefore not grounds for denying a Rule 56
motion. See Anderson., 477 U.S. at 248.

Upon such a showing by the movant,
the burden shifts to the non-moving party to
present evidence of a genuine dispute of fact
that will call the movant’s right to summary
judgment into question. See United States v.
Rem, 38 F.3d 634, 643 (2d Cir. 1994). In
satisfying this burden, the non-movant may
not rely on the pleadings and must present
actual evidence “including depositions,
document…or other materials[.]” Fed. R.
Civ. P. 56(c)(1)(A); see also Celotex Corp.
477 U.S. at 324. This evidence “need not [be]
in a form that would be admissible at trial.”
Doona v. OneSource Holdings, Inc., 680
F.Supp.2d 394, 400 (E.D.N.Y. 2010)
(summary order) (citing Celotex Corp., 477
U.S. at 324; United States v. Rem, 38 F.3d
634, 643-44 (2d Cir. 1994)). However,
completely “unsupported allegations do not
create a material issue of fact.” Weinstock v.
Columbia University, 224 F.3d 33, 41 (2d
Cir. 2000); see also Dougherty v. County of
Suffolk, No. 13-CV-6493 (JS)(AKT), 2016
WL 3983623, at *2 (E.D.N.Y. July 25, 2016).
Consistent with this rule, inadmissible
hearsay cannot provide a basis for denial of

II.

Prima Facie Negligence

Under New York law, to prevail on a
common law negligence claim the plaintiff
must establish: (1) that the defendant owed
them a duty of care; (2) that the defendant
breached this duty; and (3) that the breach
proximately caused the plaintiff’s injury. See

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Young argues that New York State rules for
summary judgment should govern in this diversity
action. (Pl. Mr. Opp. at 7-8). Under New York’s
summary judgment standard, a defendant-movant in a
slip-and-fall action must affirmatively establish that it
was not negligent, not merely that the plaintiff will be
unable to prove negligence. See Totten v. Cumberland
Farms, Inc., 871 N.Y.S.2d 179 (2d Dep’t 2008).
Young, relying principally on Guaranty Trust Co. of
N.Y. v. York, 326 U.S. 99, 109-10, 65 S.Ct. 1464, 89
L.Ed. 2079 (1945), argues that because Rule 56 adopts
a different burden of proof it is outcome determinative
and thus state law governs. (Dkt. No. 31 (Plaintiff’s

Response to Morrison Management Motion for
Summary Judgment (“Pl. Mr. Opp.”)) at 7-8). Both the
Second Circuit and this Court have previously rejected
this argument. See Tenay v. Culinary Teachers Ass’n
of Hyde Park, 281 F.App’x 11, 12-13 (2d Cir. 2008)
(summary order); see also Cruz v. Target Corp., 14CV-2728 (RER), 2016 WL 3102018, at *2 (June 2,
2016). Application of the federal rule does not change
Young’s ultimate burden of proof. At most, it changes
the timing of that burden, freeing both defendants and
this Court from the expense of litigating issues that
invite only one possible outcome.

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a reasonable jury to conclude that the
defendant should have known of the
hazardous condition and taken steps to fix or
clean it. Gordon v. American Museum of
Natural History, 67 N.Y.2d 836, 837 (1986).
The plaintiff may satisfy this burden by
showing that the dangerous condition existed
for a sufficiently long period of time. See
Bynoe v. Target Corp, 548 Fed. Appx. 709,
710 (2d Cir. 213). There is no bright line
length of time after which constructive notice
will be imputed to the defendant. Rather,
“[t]o constitute constructive notice, a defect
must be visible and apparent and it must exist
for a sufficient length of time prior to the
accident to permit defendant’s employees to
discover and remedy it.” Gordon, 67 N.Y.2d
at 837.

Solomon ex rel Solomon v. City of New York,
66 N.Y.2d 1026, 1027 (1985). Both Morrison
and Crothall argue that Young has failed to
offer any evidence of the source of the
hazardous condition and as such cannot
establish any breach of duty. (Dkt. No. 27
(Crothall Brief (“Cr. Br.”)) at 7; Dkt. No. 28
(Morrison Brief (“Mr. Br.”)) at 4-5.). To
prove breach of duty in a slip-and-fall case,
the plaintiff bears the burden of proving that
the defendant either: (1) created the
hazardous condition; (2) had actual
knowledge of the hazardous condition; or (3)
had constructive notice of the hazardous
condition. See Hartley v. Waldbaum, Inc.,
893 N.Y.S.2d 272, 273 (2d Dep’t 2010); see
also Doona, 680 F.Supp.2d at 401.
To establish that a defendant created
the hazardous condition, the plaintiff must
present some evidence consistent with such a
conclusion. See Thaqi v. Wal-Mart Stores
East, LP, No. 09-CV-755 (JMA), 2014 WL
1330925, at *4 (E.D.N.Y. Mar. 31, 2014).
This does not require the plaintiff to foreclose
all possible alternative theories, see Cain v.
Amaro, 731 N.Y.S.2d 766, 766 (2d Dep’t
2001), but the evidence must at a minimum
support the reasonable inference that the
defendant created the hazard, see Doona, 680
F.Supp.2d at 404 (“The evidence, however,
does not support a reasonable inference that
[the defendant’s] employee created the
puddle, even if [it] does not foreclose such a
possibility.”). Additionally, liability based on
creation of the hazard requires proof of an
affirmative wrongful act by the defendant.
See Olsen v. K Mart Corp., No 04-CV-3648
(JMA), 2005 WL 2989546, at *4 (E.D.N.Y.
Nov. 8, 2005) (Plaintiff “must show the
creation was an affirmative, deliberate and
intentional act by defendant.”)(internal
quotations omitted).

Constructive notice can also be
proven by showing that the defendant had a
duty to conduct reasonable inspections but
failed to do so. See Cruz, 2016 WL 3102018
at *2 . To prevail on a failure to inspect
theory, the plaintiff must still demonstrate not
only that the defendant breached its duty to
inspect but that a reasonable inspection
would have prevented the injury. See Lacey
v. Target Corp., No. 13 CV 4098 (RML),
2015 WL 2254968, at *6 (E.D.N.Y. May 13,
2015) (“[A]ssuming a reasonable inspection
had not taken place, plaintiff has not shown
that a reasonable inspection would have
discovered the condition….Accordingly,
[defendant] has met its burden of showing the
absence of a genuine issue of material fact on
this issue.”). Thus, some evidence of timing
is still required.
III.

Sufficiency of the Evidence

Making all reasonable inferences in
Young’s favor, she slipped on a greasy or oily
substance on the locker room floor, resulting
in her fall. However, to survive summary
judgment Young must also offer evidence

Where the plaintiff’s theory rests on
constructive notice, the evidence must permit

5

Without evidence regarding the
source of the hazard, there can be no dispute
of material fact as to whether Morrison
employees actually created the hazardous
condition. Without evidence regarding when
the condition was created, there can be no
dispute of material fact as to constructive
notice by Crothall. Even accepting Young’s
argument regarding Crothall’s duty to
conduct reasonable inspections, absent
evidence tending to show that improved
inspections would have prevented the
accident, this dispute of fact, though material,
is hardly genuine. Young has failed to present
any evidence from which a reasonable jury
could find in her favor. As such, the
Defendants’ motions are granted.

from which a reasonable juror could
conclude: (1) that Morrison created the
hazard and (2) that this creation occurred far
enough in advance of the accident to permit
constructive notice to be imputed to Crothall.
Young offers the same evidence as to
both Defendants. Namely, Young argues that
at approximately 11:30am on the day of the
accident Morrison employees were eating in
the locker room when they spilled a greasy or
oily substance on the ground, on which she
would later slip. The evidentiary standard at
this stage of litigation is low, but Young fails
to satisfy it. The only evidence offered is
Young’s testimony that, one to two months
after the accident, Winter described this
series of events to her. Winter vehemently
denies this. As such, Young’s motion is
predicated entirely on impermissible hearsay
by an interested party.

CONCLUSION
For the reasons stated above,
Defendants’ motions for summary judgment
are granted. The Clerk of the Court is directed
to dismiss the case with prejudice.

Young argues that admissible
evidence may still be forthcoming. (Pl. Mr.
Opp. at 6). She notes that Winter’s changed
her testimony during deposition after her
memory was refreshed, and that her
recollection could be further refreshed at
trial. Id. However, there is no indication,
beyond mere speculation, that this version of
events is accurate or that the hoped for
evidence will be forthcoming. Absent
confirmation by Winter, Young has no
evidence of how the hazard was created or
how long it was present prior to the accident.

SO ORDERED.
Dated: February 1, 2017
Brooklyn, New York

Ramon E. Reyes, Jr.
RAMON E. REYES, JR.
United States Magistrate Judge

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