Strass et al v. Costco Wholesale Corporation

Filing 31

ORDER granting 25 Motion for Summary Judgment: For the reasons stated in the attached Memorandum and Order, Defendant's motion for summary judgment is GRANTED. The Clerk of Court is respectfully directed to enter judgment for Defendant and close the case. Ordered by Judge Pamela K. Chen on 6/17/2016. (Merin, Eric)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NINA STRASS and ALLAN GOLD,
Plaintiffs,
MEMORANDUM & ORDER
14-CV-06924 (PKC) (VMS)

- against COSTCO WHOLESALE CORPORATION,
Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:

Plaintiffs Nina Strass and Allan Gold bring this action against Defendant Costco Wholesale
Corporation (“Defendant” or “Costco”) seeking damages for injuries suffered as a result of Strass’s
slip-and-fall inside one of Costco’s stores. Costco now moves for summary judgment, contending
that Plaintiffs have failed to put forward sufficient evidence to make out a prima facie case of
negligence. More narrowly, the issue is whether the record contains evidence that Costco created
the condition that allegedly caused Strass’s fall or, in the alternative, had actual or constructive
notice of the condition. Because the record is devoid of any evidence that Costco created, or had
actual or constructive notice of, the condition, and for the additional reasons stated below, Costco’s
motion for summary judgment is granted.
BACKGROUND
I.

THE AUGUST 23, 2014 INCIDENT
On August 23, 2014, Plaintiffs Nina Strass and her husband Allan Gold visited a Costco

store in North Brunswick, New Jersey, (Dkt. 27 (“Def.’s 56.1”) ¶ 2-3), 1 arriving “between 4:00

1

The facts in this section are drawn from the statements contained in the parties’
56.1 statements. Unless otherwise noted, a standalone citation to a 56.1 Statement denotes that
the Court has deemed the underlying factual allegation undisputed. Any citation to a party’s 56.1

p.m. and 4:30 p.m.” (Id. ¶ 4.) According to Gold, during their visit, Plaintiffs walked “through
every aisle except for the meat aisle.” (Dkt. 25-5 (“Gold. Dep.”) at 11:9-11.) After walking
through the store, Plaintiffs walked towards the cash registers to check out. (Def.’s 56.1 ¶ 8.) Gold
testified that as Plaintiffs approached the registers, his wife left him and went to get something to
drink. (Gold. Dep. at 13:2-10.) 2
Approximately 20 to 30 minutes after arriving at Costco, “[o]n her way to select [a]
beverage product,” Strass slipped and fell by Aisle 319. (See Def.’s 56.1 ¶¶ 8-9.) Prior to her fall,
she did not see the substance that allegedly caused her to slip on the floor. (Id. ¶ 15.) Although
Strass stated that the substance was “wet,” but not “sticky,” (Strass Dep. at 29:9-12), she did not
know its color, origin, or how long it had been on the floor prior to her fall. (Def.’s 56.1 ¶¶ 13-14,

Statement incorporates by reference the documents cited therein. Where relevant, however, the
Court may cite directly to underlying documents.
Local Rule 56.1 “requires a party moving for summary judgment to submit a statement of
the allegedly undisputed facts on which the moving party relies, together with citation to the
admissible evidence of record supporting each such fact. . . . If the opposing party then fails to
controvert a fact so set forth in the moving party’s Rule 56.1 statement, that fact will be deemed
admitted.” Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003); see also Jessamy v. City
of New Rochelle, 292 F. Supp. 2d 498, 504 (S.D.N.Y. 2003) (A party’s “failure to respond or
contest the facts set forth [in the moving party’s] Rule 56.1 statement as being undisputed
constitutes an admission of those facts, and those facts are accepted as being undisputed.”)
(quotation marks omitted). In its reply, Defendant did not respond to Plaintiffs’ 56.1 counterstatement. Therefore, the Court deems the facts asserted in Paragraphs 30 through 40 of Plaintiffs’
56.1 counterstatement to be undisputed and admitted. Giannullo, 322 F.3d at 140; see also
Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (Rule 56 “does not impose
an obligation on a district court to perform an independent review of the record to find proof of a
factual dispute.”). The Court is not aware of any authority that dictates a different rule where the
moving party is responding to a non-moving party’s 56.1 counter-statement.
2

Plaintiffs disagree as to whether or not Gold was in the checkout line when his wife
went to find something to drink. (Compare Gold. Dep. at 12:15-18 (“Q. At that point, your wife
left you to go look for water? A. My wife went to look for water and I stayed on the checkout
line.”) with Dkt. 25-4 (“Strass Dep.”) at 23:20-24:2 (“Q. . . . At the time that you split from your
husband when you went to retrieve the water, is it true, yes or no, that he was not yet at the cash
registers? A. Yeah, we didn’t stay in the line yet.”).)
2

16.) After she fell, Strass stood up unassisted and walked towards the front of the store where her
husband waited. (Id. ¶ 17.) While in line to check out, Gold recalls that he saw his wife walk
towards him looking “pale” with “blood . . . coming off of her arm” and “bones sticking out from
her fingers.” (Gold Dep. at 15:5-15.) Plaintiffs then walked to Costco’s food court and reported
the incident to a Costco employee. (Def.’s 56.1 ¶ 21.) Around this time, Robert Chiavaroli, a
Costco maintenance employee saw Strass and rendered medical assistance to her in the food court.
(Id. ¶ 28.) 3 While receiving aid, Strass did not tell Chiavaroli the cause of her injury. (Id.) To
further assist, Chiavaroli bandaged Strass’s wrist and helped transport her by wheelchair into a
back-office space. (Dkt. 30 (“Pls.’ 56.1”) ¶ 39.) Sometime later, Gold took his wife to the Hospital
for Special Surgery in Manhattan, where she underwent surgery the following Monday. (Id. ¶ 40.)
II.

COSTCO’S SPILL POLICY
Costco maintains certain policies and procedures to address potential accidents from spills

and other hazards. Specifically, the store’s employees conduct hourly floor-walk inspections,
“which consist of an employee walking through the store, starting from the entrance and working
their way throughout the building to inspect for conditions within the warehouse.” (Def.’s 56.1
¶ 23.) Costco employees are required to report “anything of danger” that is discovered during the
inspection on the store’s daily walk sheet. (Id.) On the daily walk sheet (“Walk Sheet”), there is
a section to record any “spills or other hazards.” (Id.)

3

As a maintenance employee, Chiavaroli is responsible for responding to calls from
other employees, remediating spills, and performing any necessary maintenance in the Costco.
(Def.’s 56.1 ¶ 29.)
3

On August 23, 2014, the Walk Sheet indicated that Robert Coombs, a member services 4
employee at Costco, performed a floor walk that “began at 4:10 p.m. and was completed around
4:40 p.m.” (Id. ¶ 25.) The Walk Sheet is devoid of any indication from either before or after
Strass’s fall that there was a beverage spill near the area where beverages are sold in bulk, which
includes Aisle 319. (Id. ¶¶ 26-27.)
III.

THE INSTANT LITIGATION
On November 25, 2014, Plaintiffs commenced this action to recover damages for Strass’s

injuries and Gold’s loss of consortium. (Dkt. 1.) After discovery, on February 26, 2016, Defendant
moved for summary judgment seeking dismissal of Plaintiffs’ claims in their entirety. (Dkt. 25.)
DISCUSSION
I.

LEGAL STANDARD
Summary judgment is proper only where, construing the evidence in the light most

favorable to the non-movant, “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); see also Redd v. N.Y. Div. of
Parole, 678 F.3d 166, 173–74 (2d Cir. 2012). A dispute is “genuine” when “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). A fact is material within the meaning of Rule 56 where it “might
affect the outcome of the suit under the governing law.” Id. at 248. In determining whether there
are genuine disputes of material fact, the court must “resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary judgment is sought.”
Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (citations and quotations omitted).

4

“Member services” is Costco’s term for “customer services,” presumably based on
the fact all of its customers have to become “members” to shop at its stores. See
http://www.costco.com/membership.html.
4

This standard imposes the initial burden on the moving party to demonstrate the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has met this burden, the party opposing summary judgment must identify specific
facts and affirmative evidence that contradict those offered by the moving party to demonstrate
that there is a genuine issue for trial. Id. at 324; see also Anderson, 477 U.S. at 256–57. “The
non-moving party may not rely on mere conclusory allegations nor speculation, but instead must
offer some hard evidence showing that its version of the events is not wholly fanciful.” D'Amico
v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998) (collecting cases). “Summary judgment is
appropriate only ‘[w]here the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party.’” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 141
(2d Cir. 2012) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). Summary judgment is also proper where “after adequate time for discovery and upon
motion . . . a party . . . fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, on which that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322-23.
II.

PLAINTIFF’S NEGLIGENCE CLAIM
A.

Negligence Under New York Law

“To establish a prima facie case of negligence under New York law, a plaintiff must
demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury
proximately resulting therefrom.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir. 2006)
(citations and quotations omitted). 5 In a slip-and-fall case, “the plaintiff must demonstrate a

5

Defendant argues, and Plaintiffs do not contest, that New York law applies to this
action. “A federal court sitting in diversity applies the choice of law principles of the forum state,
in this case New York, to decide which state’s substantive law controls.” Simon v. Philip Morris
5

genuine issue of material fact that the defendant either created the dangerous condition or had
actual or constructive notice of the condition.” Lionel v. Target Corp., 44 F. Supp. 3d 315, 318
(E.D.N.Y. 2014) (emphasis added); Lacey v. Target Corp., 13-CV-4098, 2015 WL 2254968, at *2
(E.D.N.Y. May 13, 2015); see Kraemer v. K-Mart Corp., 641 N.Y.S.2d 130 (N.Y. App. Div.
1996).
Defendant argues that there is no evidence in the record indicating that Costco created the
wet condition or had actual or constructive notice that the liquid was present on the floor prior to
Strass’s fall. Plaintiffs respond that there is “a question of fact as to [] whether the Defendant
caused and created the hazardous condition that caused [Strass’s] fall or had [] actual or
constructive notice of the same.” (Dkt. 29 (“Pls.’ Opp.”) at 11.) 6
B.

Applicable Summary Judgment Standard

As an initial matter, the parties dispute the applicable summary judgment standard.
Specifically, Plaintiffs contend that the moving party, i.e. Defendant, must “make out a prima facie
case establishing that it did not have notice of or create the condition that caused Plaintiff’s fall.”

Inc., 124 F. Supp. 2d 46, 53 (E.D.N.Y. 2000) (citations omitted). “[T]he first question to resolve
in determining whether to undertake a choice of law analysis is whether there is an actual conflict
of laws.” Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998). Here, the Court agrees with
Defendant that there is no relevant conflict between New York’s and New Jersey’s negligence
laws. See, e.g., Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (N.Y. App. Div. 1985);
Febesh v. Elcejay Inn Corp., 157 A.D.2d 102, 104 (N.Y. App. Div. 1990). Accordingly, the Court
applies New York substantive law to the elements of Plaintiffs’ claims, but federal procedural law
to determine whether Defendant is entitled to summary judgment. See Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938); Khalil-Mirhom v. Kmart Corp., 12-CV-5512, 2014 WL 173415, at *3
(E.D.N.Y. Jan. 13, 2014); Casierra v. Target Corp., 09-CV-1301, 2010 WL 2793778, at *1
(E.D.N.Y. July 12, 2010).
6

All page references correspond to page numbers generated by the Electronic Court
Filing (“ECF”) system, and not the document’s internal pagination.
6

(Pls.’ Opp. at 5.) 7 But Plaintiffs’ argument erroneously relies on the State court summary judgment
standard, which differs from the standard applied in federal court. See Shimunov v. Home Depot
U.S.A, Inc., 11-CV-5136, 2014 WL 1311561, at *3 (E.D.N.Y. Mar. 28, 2014); Painchault v. Target
Corp., 09-CV-1831, 2011 WL 4344150, at *3 (E.D.N.Y. Sept. 14, 2011) (citations and quotations
omitted); DeAngelis v. Am. Airlines, Inc., 06-CV-1967, 2010 WL 1292349, at *3 n.2 (E.D.N.Y.
Mar. 31, 2010). Whereas the State court summary judgment standard in New York requires the
moving party to put forth evidence in support of its motion for summary judgment, the federal
standard does not. Casierra, 2010 WL 2793778, at *1 n.1 (citing N.Y.C.P.L.R. 3212(b)); see
Tenay v. Culinary Teachers Ass'n of Hyde Park, 281 F. App'x 11, 12 (2d Cir. 2008) (noting how
New York summary judgment standard differs from federal standard); Simoes v. Target Corp., 11CV-2032, 2013 WL 2948083, at *9 (E.D.N.Y. June 14, 2013). Under the federal summary
judgment standard, Defendant is not required to put forth evidence affirmatively demonstrating its
lack of knowledge or its constructive knowledge; rather, it need only show that Plaintiffs will not
be able to prove at trial that Defendant had such knowledge. It is this standard that controls here
“because what burdens each party bears on summary judgment is a procedural rather than
substantive matter.” DeAngelis, 2010 WL 1292349, at *3 n.2 (citations and quotations omitted);
see Chong v. Target Corp., 14-CV-547, 2015 WL 2250250, at *4 (E.D.N.Y. May 12, 2015)
(plaintiff “miscontrue[d] the burden” where she “argue[d] that [d]efendant . . . failed to prove a
lack of constructive notice”). Thus, Defendant can meet its burden on summary judgment in
7

The Court notes that despite correctly identifying the federal court summary
judgment standard, Plaintiffs simultaneously and erroneously rely on the State court summary
judgment. (Compare Pls.’ Opp. at 5 (“It follows that defendant has failed to make a prima facie
case establishing that it did not have notice of or create the condition that caused Plaintiff’s fall.”)
with id. at 3 (“No genuinely triable factual issue exists when the moving party demonstrates, after
drawing all inferences and resolving all ambiguities in favor of the non-moving party[,] that no
rational jury could find in the non-movant’s favor.”).
7

federal court by pointing to Plaintiffs’ inability to prove at trial that Defendant created or had actual
or constructive notice of the allegedly hazardous condition. 8
C.

Creation of the Condition

Defendant avers that “[P]laintiffs offer no evidence as to the creation of the spill that is
alleged to have caused her fall.” (Dkt. 26 (“Def.’s Br.”) at 15.) In the context of a summary
judgment motion, Plaintiffs’ “burden . . . is not merely to proffer a plausible theory, but to present
evidence from which a reasonable jury could draw the inference that Defendant created the
hazardous condition.” Lionel, 44 F. Supp. 3d at 319 (citing Tenay, 281 F. App’x at 13).
Here, Plaintiffs fail to point to any evidence establishing that Costco and/or its employees
created the spill that allegedly caused Strass’s fall. Indeed, it is undisputed that Strass “did not
know the origin of the condition on which she fell,” (Def.’s 56.1 ¶ 14), and Plaintiffs do not proffer
any additional evidence to establish that Defendant created the spill. Absent such evidence,
Plaintiffs cannot prove that Defendant created the spill, and summary judgment on that issue is
warranted. See, e.g., Painchault, 2011 WL 4344150, at *3 (granting summary judgment where
plaintiff did not know the source of the spill and failed to present any other evidence regarding its
source); Doona v. OneSource Holdings, Inc., 680 F. Supp. 2d 394, 404 (E.D.N.Y. 2010) (“The
evidence . . . does not support a reasonable inference that [defendant’s] employee created the
puddle, even if [it] does not foreclose such a possibility.”); Quarles v. Columbia Sussex Corp., 997
F. Supp. 327, 331 (E.D.N.Y. 1998) (“There is no proof, only mere speculation, as to how the
substance got on the floor, or whether the defendants or their employees created the condition, and

8

Plaintiffs correctly identify “preponderance of the evidence” as the ultimate burden
they will bear at trial. (Pls.’ Opp. at 3.) But to survive summary judgment, Plaintiffs still must
present sufficient evidence to create a triable issue of fact as to all elements of their claim, i.e., that
a jury could find, by a preponderance of the evidence, that Plaintiffs had proved their claim.
8

absent evidentiary proof in admissible form to prove otherwise, the plaintiff has not raised a triable
issue of fact.”).
D.

Actual Notice

Defendant also argues that Plaintiffs present no evidence to support their allegation that
Costco and/or its employees had actual notice of the spill. (Def.’s Br. at 15.) To show actual
notice, the plaintiff must “prove that the defendants were, in fact, aware of the dangerous
condition.” Quarles, 997 F. Supp. at 332; Nussbaum v. Metro-N. Commuter R.R., 603 F. App’x
10, 12 (2d Cir. 2015) (“Actual notice requires that a defendant receive complaints or similarly be
alerted to the existence of the dangerous condition.”). Aside from conclusory references to “actual
notice,” Plaintiffs do not identify any evidence that would support a finding that Costco was, in
fact, aware of the condition that allegedly caused Strass’s fall, and the Court’s review of the record
reveals none.
E.

Constructive Notice

Because Plaintiffs have failed to show that Costco created or had actual notice of the
condition that allegedly caused Strass’s fall, the sole dispositive issue at this stage is whether the
record contains evidence that Costco had constructive notice of the condition. It does not.
“To 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.” Lacey, 2015 WL 2254968, at *3 (citations and quotations omitted); Quarles, 997
F. Supp. at 332; Hammond-Warner v. United States, 797 F. Supp. 207, 211 (E.D.N.Y. 1992).
“[P]laintiff must provide some basis for an inference that the [spill was] there long enough to blame
[D]efendant for the accident.” Lacey, 2015 WL 2254968, at *4 (citations and quotations omitted).
A “general awareness” of the allegedly hazardous condition is insufficient. DeAngelis, 2010 WL

9

1292349, at *6 (citation and quotation omitted). “[A] jury should not be allowed to conclude,
based on mere speculation, that a condition was visible and apparent for a sufficient length of time
to be discovered and remedied.” Painchault, 2011 WL 4344150, at *4 (citation and quotation
omitted).
1.

Direct Evidence

Summary judgment is warranted where a plaintiff “fails to submit evidence that the
dangerous condition was present for some time before the accident occurred.” DeAngelis, 2010
WL 1292349, at *6; Tenay, 281 F. App’xat 14 (affirming grant of summary judgment where
plaintiff “offered neither any evidence that the wet area was visible or apparent, nor any evidence
suggesting how long the condition had existed prior to his fall”); Lacey, 2015 WL 2254968, at *45 (plaintiff failed to “identif[y] any evidence that raise[d] a triable issue of fact as to constructive
notice” where “debris that purportedly caused plaintiff’s slip could have been on the floor for a
long period of time, or it could have landed there only moments before plaintiff slipped on it”);
Casierra, 2010 WL 2793778, at *3 (“To get to a jury, [the plaintiff] is required to provide some
basis for an inference that the spill was there long enough to blame [the defendant] for the
accident.”); Hammond-Warner, 797 F. Supp. at 211 (“[I]n order to show constructive notice,
plaintiff must present evidence of the length of time the condition existed prior to the alleged fall.
In the absence of such evidence, the complaint must be dismissed.”).
Here, the record is devoid of any evidence establishing the amount of time the liquid was
on the floor prior to Strass’s fall and, therefore, there are no genuine issues of material fact for
trial. Indeed, the parties agree that Strass herself, at the time of accident, “did not know how long
the condition [had] existed on the floor prior to the time that she fell. (Def.’s 56.1 ¶ 16.) And
now, after discovery, Plaintiffs still do not offer any evidence as to when the spill occurred.

10

Accordingly, summary judgment is warranted because Plaintiffs fail to offer evidence as to an
element which they bear the burden at trial, i.e., that the substance was on the floor long enough
for one of Defendant’s employees to have discovered it, so as to support a finding of constructive
notice. See Shimunov, 2014 WL 1311561, at *6 (finding that defendant established an absence of
constructive notice where plaintiff could not present evidence as to how long the condition existed
prior to plaintiff’s fall); Quarles, 997 F. Supp. at 332 (“[T]here is no evidence as to when the coffee
was spilled on the floor, and plaintiff’s failure to offer such evidence is fatal to her claim of
constructive notice.”); Hammond-Warner, 797 F. Supp. at 211 (granting summary judgment where
plaintiff did not know the length of time the substance had been on the ground) (collecting cases).
Moreover, the record supports the conclusion the contrary conclusion, i.e., that Defendant
did not have constructive notice of the spill before Strass’s fall. Strass feel between 4:20 p.m. and
5:00 p.m. (See Def.’s 56.1 ¶¶ 4, 8-9.) According to Costco’s Walk Sheet, Costco’s employee
Coombs conducted a full store inspection between 4:10 p.m. and 4:40 p.m. (Dkt. 25-10 (“Walk
Sheet”) at 1.) He also specifically indicated that he checked the Sales Floor, which includes Aisle
319, where the fall occurred, for “[t]rash, spills & trip hazards.” (Id.) Based on Coombs’s
recollection and review of the Walk Sheet, he testified that he did not find any hazards during his
walk between 4:10 p.m. and 4:40 p.m. (Dkt. 25-8 (“Coombs Dep.”) at 30:15-18 (“Q. On your
daily walk/safety inspection walk at four o’clock on August 3, 2014, did you find anything that
needed to be reported? A. No.”).)
Where a defendant conducts regular inspections and fails to discover any hazards prior to
a plaintiff’s slip and fall, there can be no showing of constructive knowledge and summary
judgment in favor of the defendant is appropriate. See, e.g., Shimunov, 2014 WL 1311561, at *23 (granting defendant’s summary judgment motion where spill area was inspected “at most, one

11

hour before plaintiff’s accident” and plaintiff failed to produce evidence establishing that spill
existed for a period of time prior to accident); Stephanides v. BJ's Wholesale Club, Inc., 12-CV0083, 2013 WL 1694901, at *6-9 (E.D.N.Y. Apr. 18, 2013) (granting defendant’s summary
judgment motion where inspection of area occurred within an hour of accident and plaintiff failed
to produce evidence indicating defendant’s knew of spill); Gonzalez v. K-Mart Corp., 585 F. Supp.
2d 501, 505 (S.D.N.Y. 2008) (finding as a matter of law that defendant did not act unreasonably
where “inspections occurred every ten to fifteen minutes during store hours”); Mantzoutsos v. 150
St. Produce Corp., 76 A.D.3d 549, 549-50 (N.Y. App. Div. 2010) (finding under State court
summary judgment standard that defendant proved lack of constructive notice where store
manager inspected the aisle where the spill occurred “sometime within the hour immediately
before the injured plaintiff fell”). Here, absent any evidence to the contrary, the Walk Sheet
establishes that Defendants could not have had constructive notice of the spill that allegedly caused
Strass’s slip and fall.
Plaintiffs respond that there are issues of fact precluding summary judgment because (1)
“Mr. Coombs in fact never said that he specifically inspected aisle 319,” (2) the record is allegedly
unclear as to the exact time he inspected Aisle 319, and (3) the time of Strass’s fall is in dispute.
(Pls.’ Opp. at 4-5.) These arguments all fail. 9

9

Plaintiffs’ reliance on Birnbaum v. New York Racing Association, 869 N.Y.S.2d
222 (N.Y. App. Div. 2012) is misplaced. First, Birnbaum is factually distinguishable from this
case. In Birnbaum, there was “no evidence regarding any particularized or specific inspection or
stair-cleaning procedure in the area of the plaintiff’s fall on the date of the accident.” Id. at 224.
Here, by contrast, the evidence shows that Costco conducted hourly inspections and that such
inspections occurred on the day of Strass’s accident. Second and more fundamentally, Birnbaum
is a State court case in which the decision was based on the State court summary judgment
standard, which requires the defendant to prove lack of constructive notice. Here, as previously
discussed, Plaintiffs, and not Defendant, bear the burden of putting forth sufficient evidence to
establish a triable issue of fact regarding constructive notice.
12

First, Plaintiffs’ argument that Coombs did not inspect Aisle 319 is based entirely on
deposition testimony at which Coombs testified that he did not have “independent recollection” of
which areas he inspected on the day of the incident and had to rely on his Walk Sheet for that the
day. (Id. at 4.) But, as previously discussed, the Walk Sheet makes clear that Coombs inspected
the Sales Floor, which includes Aisle 319, on the day in question. (Walk Sheet at 1.) Contrary to
Plaintiffs’ argument, Coombs’s lack of independent recollection does not create a genuine issue of
material fact.
Second, the exact time of Aisle 319’s inspection and Strass’s fall are not material for
purposes of summary judgment. The record shows that Aisle 319 was inspected between 3:073:55 p.m. and again between 4:10-4:40 p.m. (Walk Sheet at 1), 10 and that Strass fell between 4:20
p.m. and 5:00 p.m. (Dkt 25-5 (“Gold Dep.”) at 9:11-18; Dkt. 25-9 (“Incident Report”) at 1; Def.’s
56.1 ¶¶ 4, 8-9.) Thus, the exact time at which Strass fell is immaterial because no matter when she
fell, Costco had conducted at least one inspection of Aisle 319 shortly before the spill and had
determined that there were no hazardous conditions. 11
2.

Circumstantial Evidence

Given the absence of direct evidence to establish constructive notice, Plaintiffs argue that
a reasonable jury could find constructive notice based on certain circumstantial evidence, namely:

10

Though the end time for the last inspection is missing a digit, the inspection appears
to have concluded at or around 6:30 p.m. (Walk Sheet at 1.)
11

Plaintiffs argue that the ambiguity surrounding the time Strass fell is material
because it shows that there was “ample time for the dangerous condition to have happened.” (Pls.’
Opp. at 5.) But that is not the test. Plaintiffs need not adduce evidence that there was sufficient
time for the condition to have occurred; rather, Plaintiffs must show that the condition existed for
a sufficient amount of time for Costco reasonably to have discovered it. See Shimunov, 2014 WL
1311561, at *6. Indeed, the very fact that Plaintiffs cannot establish when the spill occurred weighs
decidedly in favor of granting summary judgment to Defendant because Plaintiffs cannot establish
an essential element of their claim.
13

(1) an earlier spill in an aisle “not far” from Strass’s fall, and (2) the size of the puddle that allegedly
caused Strass to slip. (Pls.’ Opp. at 6-9.) Neither of these facts, however, viewed in the light most
favorable to Plaintiffs, is sufficient to defeat summary judgment.
First, Plaintiffs argue that constructive notice can be inferred because there is evidence that
Costco’s employees were aware of another spill on the same day “not far” from the site of Strass’s
slip and fall. (Pls.’ Opp. at 7-8.) Even if true, such evidence fails to show that Costco had
constructive notice of the spill that allegedly caused Strass’s fall. 12 Generally, a “plaintiff
may . . . establish constructive notice by submitting evidence that an ongoing and recurring
dangerous condition existed in the area of the accident which was routinely left unaddressed by
the [defendant].” Gonzalez, 299 F. Supp. 2d at 193 (citation and quotation omitted) (emphasis
added). This evidence must show Defendant’s “constructive notice of the particular dangerous
condition that caused the accident.” Id. (Citations and quotations omitted) (emphasis added).
Here, according to the Walk Sheet, an earlier inspection on the day of Strass’s slip and fall
revealed a wet floor around Aisle 300. (Walk Sheet at 1.) Maintenance later mopped the floor
and cured the potentially hazardous condition. (Id.) This evidence regarding Costco’s knowledge
of another spill in a different aisle is not relevant to establishing either how long prior to Strass’s
fall the spill in Aisle 319 existed or that Costco had constructive notice of that spill. Ortiz v.
Pathmark Stores, Inc., 03 CIV.0040, 2004 WL 2361674, at *4 (S.D.N.Y. Oct. 20, 2004), aff'd, 046146-CV, 2005 WL 2899864 (2d Cir. Nov. 3, 2005) (finding that evidence of grapes on the floor
in one part of the store fifteen minutes prior to a slip and fall in another location did not establish

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For purposes of this Memorandum and Order, the Court assumes that Aisle 319,
where the accident occurred, is “not far” from Aisle 300, where another spill occurred earlier in
the day. However, neither party has identified any evidence regarding the relative locations of
these aisles.
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constructive notice as to how long grapes were present in location where spill occurred); Anderson
v. Cent. Valley Realty Co., 751 N.Y.S.2d 586, 587-88 (N.Y. App. Div. 2002) (defendant entitled
to summary judgment where plaintiff observed puddle of water in another part of the store prior
to her fall, but could not show that the puddle plaintiff slipped on was present for enough time to
infer constructive notice).
Second, Plaintiffs’ circumstantial evidence that Strass slipped on a large puddle, without
more, does not support an inference that the puddle had existed for enough time to allow a Costco
employee to discover the spill and clean it up. Obviously, a large amount of liquid can be spilled
as quickly as a small amount of water. To infer a longer period of time based on the size of the
puddle, Plaintiffs would have to offer evidence that the original puddle was small and grew over
time, such as might occur if the spill resulted from a slow leak. 13 Plaintiffs fail to offer any such
evidence and thus do not create a genuine issue of material fact in order to survive summary
judgment. See Lacey, 2015 WL 2254968, at *4-5 (finding that plaintiff failed to raise a triable
issue of fact as to constructive notice, based on plaintiff’s testimony that apple pieces were brown,
since the apple pieces “could have been brown and oxidized before [they] fell on the floor”). This
is not a case where the “telltale signs supporting an inference of a long-standing condition” are
present. See, e.g., Quarles, 997 F. Supp. at 333 (rejecting plaintiff’s argument about inferring a

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Plaintiffs refer to Giuffrida v. Metro N. Commute R. Co. as a case that is “similar
to the case at bar.” (Pls.’ Opp. at 7.) However, the court in Giuffrida applied the State court
summary judgment standard, and is therefore distinguishable. See 720 N.Y.S.2d 41 (N.Y. App.
Div. 2001) (“Contrary to defendants’ suggestion, it is not plaintiff’s burden in opposing the
motions for summary judgment to establish that defendants had actual or constructive notice of
the hazardous condition. Rather, it is defendants’ burden to establish the lack of notice as a matter
of law.”). Negri v. Stop & Shop, Inc. is also distinguishable. In Negri, unlike here, the record
contained circumstantial evidence “that a slippery condition was created by jars of baby food
which had fallen and broken a sufficient length of time prior to the accident to permit defendant’s
employees to discover and remedy the condition.” 65 N.Y.2d 625, 626 (N.Y. 1985).
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longstanding puddle where there was no evidence that the puddle had previously been stepped in).
Accordingly, absent evidence regarding the increase in size of the puddle, any inference of
constructive notice based on Plaintiffs’ description of the size of the puddle is pure speculation.
See Nolasco v. Target Corp., 10-CV-3351, at 5 (E.D.N.Y. Nov. 14, 2012) (rejecting plaintiff’s
argument where “detergent may well have been inherently thick and cloudy”); Casierra, 2010 WL
2793778, at *3 (“For all we know, the lotion may have been on the floor for a long time, or it may
have spilled moments before [the plaintiff] slipped on it.”); Casiano v. Target Stores, 06-CV-6286,
2009 WL 3246836, at *4 (E.D.N.Y. Sept. 24, 2009) (finding that laundry detergent’s condition as
“dried, pasty, and sticky” did not permit the inference that it was “present on the floor for a
sufficient amount of time to constitute constructive notice.”). Cf. Figueroa v. Pathmark Stores,
Inc., No. 02 CIV. 4992, 2004 WL 74261, at *4 (S.D.N.Y. Jan. 15, 2004) (inferring constructive
notice where there was a trail of pink liquid with “shopping cart tracks and footprints through it”
combined with plaintiff’s observation that the liquid had changed colors and become sticky).
Accordingly, drawing all inferences in favor of Plaintiffs as the non-moving parties, a
reasonable jury could not conclude that Defendant had constructive notice of the particular spill
that allegedly caused Strass’s injury. This deficiency is fatal to Plaintiffs’ negligence claim, which
is the sole cause of action in this case.

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CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment is GRANTED.
The Clerk of Court is respectfully directed to enter judgment for Defendant and close the case.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: June 17, 2016
Brooklyn, New York

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