Contreras v. Wal-Mart Stores East, LP et al

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Accordingly, IT IS HEREBY ORDERED that the Defendants Summary Judgment Motion 20 is denied. IT IS FURTHER ORDERED that the April 1, 2020 Status Conference, currently scheduled for 11:15 a.m. in Courtroom 1 010 of the Central Islip Federal Courthouse, will commence at 11:00 a.m. and is converted to a telephonic Status Conference. At that time, the Parties are to call Chambers teleconferencing number, [phone], and follow the automated instructions; the access code is: 7215690. Ordered by Judge Sandra J. Feuerstein on 3/24/2020. (Cubano, Jazmin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x
JOAN CONTRERAS,
Plaintiff,

Case No.: 18-cv-3589 (SJF)(ST)
ORDER ADOPTING
REPORT &
RECOMMENDATION

v.
WAL-MART STORES EAST, LP and
GREEN ACRES MALL, LLC,
GEORGE MARAGOS,
Defendants.
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FEUERSTEIN, Senior District Judge:
I.

Introduction

FILED 
CLERK 

3/24/2020 1:50 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiff Joan Contreras (“Plaintiff”) commenced this action against Defendant Wal-Mart
Stores East, LP (hereafter, “WalMart”, “the Company” or “Defendant) claiming that because of
WalMart’s negligence in maintaining the vestibule area (hereafter, Vestibule”) of the WalMart
Super Center at 77 Green Acres Road South in Valley Stream, New York (hereafter, the
“Store”), Plaintiff slipped, fell, and sustained bodily injuries. (See Complaint, ECF No. 1 at 614. 1) WalMart denied Plaintiff’s allegations, raising as an affirmative defense Plaintiff’s
culpable conduct, contributory negligence, and/or assumption of risk (see Answer (ECF No. 1 at
19-24)). Thereafter, it moved for summary judgment, pursuant to Rule 56 of the Federal Rules
of Civil Procedure (hereafter, the “Summary Judgment Motion”) (see ECF No. 20; see also
Support Memo. (ECF No. 23)), asserting it neither created nor had notice of the alleged
condition in the Vestibule, which Motion the Plaintiff opposed (hereafter, “Opposition” or

1

Plaintiff brought her action in state court, which Defendant removed to this Court on the basis
of diversity jurisdiction. (See ECF No. 1 at 1-3, Notice of Removal.)
1

“Opp’n”) (see ECF No. 26). The Summary Judgment Motion was referred to then-Magistrate
Gary R. Brown 2 for a Report and Recommendation (see July 9, 2019 electronic Order of
Referral).
Presently before the Court is the Magistrate Judge’s November 12, 2019 Report and
Recommendation (hereafter, “Report”) recommending that the Summary Judgment Motion be
denied. (See Report (ECF No. 29 3).) WalMart objects to the Report (hereafter, “Objection”)
(see ECF No. 30), to which the Plaintiff has responded (hereafter, “Response”) (see ECF No.
31). For the reasons that follow, the Court overrules WalMart’s objections and adopts
Magistrate Judge Brown’s Report in its entirety.

II.

Background
The Company raised no specific objections to the Magistrate Judge’s factual findings,

which were delineated in four subsections of the Report’s “FACTUAL BACKGROUND”, to
wit: “1. The Incident” describing Plaintiff’s fall on May 25, 2017 at approximately 3:53 p.m.
(hereafter, the “Accident”), walking through a large puddle of water on the floor of the Store’s
Vestibule (hereafter, the “Alleged Dangerous Condition”) (see Report at 2-3); “2. Rain” finding,
inter alia, that “[t]he parties agree that the water in the [V]estibule was caused by rainwater
tracked in from the outside” of the Store (see id. at 3); “3. Wal-Mart’s Protocol” discussing the
testimony of Katrina Jones (“Jones”), one of the Store’s assistant managers, “regarding the

2

In December 2019, after the issuance of this Report, Judge Brown was elevated to District
Judge; however, for convenience, herein he will continue to be referred to as “Magistrate Judge
Brown” or the “Magistrate Judge”.

3

See also Contreras v. Wal-Mart Stores East, LP, No. 18-cv-3589, 2019 WL 7599888
(E.D.N.Y. Nov. 12, 2019). For convenience, when citing to the Report, the Court will use the
pagination provided within the docketed Report.
2

[S]tore’s maintenance protocol for the [V]estibule,” which included “that the floor of the
[V]estibule should be inspected every fifteen to twenty minutes” and “that every Wal-Mart
employee has an obligation to identify wet areas on the floor, to guard them, [and to] clean or
report the water to maintenance” (id. at 4); and, “4. Video Surveillance” describing Plaintiff’s
reliance on a surveillance video of the Store’s entrance and location of the Accident (hereafter,
the “Video”), which began recording at 2:59 p.m., approximately an hour before the Accident,
and depicts, inter alia, various Company employees: adjusting floor mats in the Vestibule;
moving shopping cart into and out of the Vestibule; walking through the Vestibule (with one
such employee being an assistant manager); “st[anding] near the exit side inside the [S]tore,
separated from the [V]estibule by clear sliding doors”; and, after the Accident, “clean[ing] the
area where [P]laintiff fell with a squeegee” and then mopping the same area. (Id. at 4-6.)
For the reasons that will be discussed (see infra at pp.15-17), to the extent the Defendant
objects to the Magistrate Judge’s consideration of Jones’s testimony regarding the Store’s
maintenance protocol (see Objection at 8) as “appli[cable] to the situation at issue” (Report at 4)
is overruled. The FACTUAL BACKGROUND of the Report is adopted in its entirety and
incorporated herein by reference, with the Court assuming the Parties’ familiarity therewith. 4
Further, hearing no objection to the Report’s PROCEDURAL BACKGROUND (see id. at 1),
and finding it accurately represents the procedural history of the case, it is also adopted in its
entirety and incorporated herein by reference.

4

Further, terms of art defined in the Report are incorporated and used herein, with the parties’
familiarity therewith assumed.
3

III.

Applicable Standards
A. Report and Recommendation Standard of Review
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct

proceedings of dispositive pretrial matters without the consent of the parties. See Fed. R. Civ. P.
72(b). Any portion of a report and recommendation on dispositive matters to which a timely
objection has been made is reviewed de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
However, “when a party makes only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report strictly for clear error.” Frankel v. City of
N.Y., Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009); see also
Butto v. Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) (“In a case where a party makes
only conclusory or general objections, or simply reiterates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” (quotations and citation omitted)).
The Court is not required to review the factual findings or legal conclusions of the magistrate
judge as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.
Ct. 466, 88 L. Ed.2d 435 (1985). Whether or not proper objections have been filed, the district
judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or
recommendations. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
B. Motion for Summary Judgment Standard
“Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’” ING Bank N.V. v.
M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018) (quoting Fed. R. Civ. P.
56(a)); accord Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In ruling on a summary
judgment motion, the district court must first “determine whether there is a genuine dispute as to

4

a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,
202 (2d Cir. 2007) (internal quotations and citations omitted); see also Ricci v. DeStefano, 557
U.S. 557, 129 S. Ct. 2658, 2677 (2009) (“On a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as
to those facts.” (emphasis added; internal quotations and citation omitted)).
In reviewing the record to determine whether there is a genuine issue for trial, the court
must “construe the evidence in the light most favorable to the non-moving party,” Centro de la
Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017)
(quotations, alterations and citation omitted), and “resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party opposing summary judgment.”
Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quotations and citation
omitted); see also Hancock v. County of Rensselaer, 823 F.3d 58, 64 (2d Cir. 2018) (“In
determining whether there is a genuine dispute as to a material fact, we must resolve all
ambiguities and draw all inferences against the moving party.”). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.” Ricci, 557 U.S. at 586 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986)); accord Baez v. JetBlue Airways Corp., 793
F.3d 269, 274 (2d Cir. 2015).
“The moving party bears the initial burden of showing that there is no genuine dispute as
to a material fact.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d
Cir. 2013) (quotations, brackets and citation omitted); accord Jaffer, 887 F.3d at 114. “[W]hen
the moving party has carried its burden[,] . . . its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts . . . [,]” Scott v. Harris, 550 U.S. 372,

5

380 (2007) (quoting Matsushita Elec., 475 U.S. at 586-87), and must offer “some hard evidence
showing that its version of the events is not wholly fanciful[.]” Miner v. Clinton County, N.Y.,
541 F.3d 464, 471 (2d Cir. 2008) (quotations and citation omitted). The nonmoving party can
only defeat summary judgment by “adduc[ing] evidence on which the jury could reasonably find
for that party.” Lyons v. Lancer Ins. Co., 681 F.3d 50, 56 (2d Cir. 2012) (quotations, brackets
and citation omitted). “‘The mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient’ to defeat a summary judgment motion[,]” Fabrikant v.
French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)), and “[a] court cannot credit a plaintiff’s merely speculative or conclusory
assertions.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012); see also Federal Trade Comm’n
v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) (“[A] party may not rely on mere speculation or
conjecture as to the true nature of the facts to overcome a motion for summary judgment.”
(quoting Fletcher v. Alex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995))); Flores v. United States, 885
F.3d 119, 122 (2d Cir. 2018) (“While we are required to resolve all ambiguities and draw all
permissible factual inferences in favor of the non-moving party, . . . conclusory statements,
conjecture, or speculation by the party resisting the motion will not defeat summary judgment[.]”
(quotations, alterations and citations omitted)). Since “there is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party[,]
. . . [i]f the evidence is merely colorable, . . . or is not significantly probative, . . . summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (quotations and citations omitted).
In slip and fall cases brought in federal courts pursuant to diversity jurisdiction, but
where New York state substantive law applies, where a defendant moves for summary judgment,
it may point to the absence of evidence that it caused or had notice of the hazard and thereby

6

shift the burden to the nonmovant plaintiff to create an issue for trial through specific factual
assertions. See Doona v. OneSource Holdings, Inc., 680 F. Supp.2d 394, 400-01 (E.D.N.Y.
2010). “In other words, in federal court the absence of evidence at the summary judgment stage
redounds to the detriment of the plaintiff, not the defendant.” Santora v. Costco Wholesale
Corp., No. 17-cv-4415, 2018 WL 5886442, at *3 (S.D.N.Y. Nov. 8, 2018).
C. Negligence Under New York State Law 5
Under New York law, a plaintiff asserting a negligence
claim 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) (internal quotation marks omitted). In the context of
premises liability and slip and fall cases, “the plaintiff must
demonstrate that the landowner created the condition that caused
the injury, or that the landowner had actual or constructive notice
of the condition.” Gonzalez v. Wal-Mart Stores, Inc., 299 F.
Supp.2d 188, 192 (S.D.N.Y. 2004); see Gorecki v. Painted Pony
Championship Rodeo, Inc., 6 F. App’x 103, 105 (2d Cir. 2001)
(summary order) (proving breach of duty requires showing
existence of dangerous condition and that defendant either created
it or had actual or constructive notice of it).
Santora, 2018 WL 5886442, at *3; Stephanides v. B.J. Wholesale Club, Inc., No. 12-cv-083,
2013 WL 16994901, at *3 (E.D.N.Y. Apr. 18, 2013)(“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.” (citation omitted)). “Under New York law, ‘[i]n order for a plaintiff
in a slip-and-fall case to establish a prima facie case of negligence against the property owner,
the plaintiff must demonstrate (1) that the defendant created the condition that caused the
accident, (b) that the defendant had actual knowledge of the condition, or (c) that the defendant

5

The parties agree that “New York law applies to this diversity action.” (Cf., Pl.’s Opp’n (ECF
No. 26) at 2, with Def.’s Support Memo. (ECF No.23) at 3.)
7

had constructive notice of the condition.’” Khalil-Mirhom v. Kmart Corp., No. 12-cv-5512,
2014 WL 173415, at *4 (E.D.N.Y. Jan. 13, 2014)(quoting Casierra v. Target Corp., No. 09-cv1301, 2010 WL 2793778, at *2 (E.D.N.Y. July 12, 2010); further citations omitted).
Where a plaintiff has presented evidence that a dangerous
condition exists on the property, the burden shifts to the landowner
to demonstrate that he or she exercised reasonable care under the
circumstances to remedy the condition and to make the property
safe, based on such factors as the likelihood of injury to those
entering the property and the burden of avoiding the risk.
Evidence that the dangerous condition was open and obvious
cannot relieve the landowner of this burden. Indeed, to do so
would lead to the absurd result that landowners would be least
likely to be held liable for failing to protect persons using their
property from foreseeable injuries where the hazards were the most
blatant.
Cupo v. Karfunkel, 1 A.D.3d 48, 52 (N.Y. App., 2d Dept. Oct. 27, 2003)(holding that “proof that
a dangerous condition is open and obvious does not preclude a finding of liability against a
landowner for the failure to maintain the property in a safe condition but is relevant to the issue
of the plaintiff’s comparative negligence”).

IV.

Discussion
A. Magistrate Judge Brown’s Report & Recommendation
Acknowledging that the parties dispute whether Plaintiff can establish WalMart having

created the dangerous condition or having actual or constructive notice of the dangerous
condition, Magistrate Judge Brown quickly eliminated the creation argument (see Report at 7
(“Wal-Mart indisputably did not create the dangerous condition that caused [P]laintiff’s fall.”
(Report at 7)), stating the only issue is as to notice, i.e., “whether [P]laintiff can establish that
Wal-Mart had actual or constructive notice of the condition.” (Id.) As to actual notice, while
recognizing it may be inferred with circumstantial evidence (see id. at 8), the Magistrate Judge
8

found such notice could not be inferred in this instance, because: even though the Video showed
three WalMart employees walked through the Vestibule within the approximate 50 minutes
preceding the Accident, Plaintiff failed to submit any testimony from them about their awareness
of water in the Vestibule; there was no dispute that, prior to the Accident, WalMart had not
received any reports or complaints about water in the Vestibule; and, Plaintiff conceded that no
WalMart employee had cleaned the Vestibule before the Accident. (See id. at 9.) However, as
to constructive notice, “[w]here evidence that a dangerous condition ‘had been present for a
substantial period of time . . . together with testimony that the area where plaintiff fell is subject
to regular inspection and cleaning,’” a finding of such notice may be had. (Id. at 10 (quoting
Chong v. Target Corp., 14-cv-547, 2015 WL 2250250, at *3 (E.D.N.Y. May 12, 2015)).) Since
Plaintiff presented the following evidence, the Magistrate Judge found constructive notice could
be inferred, thereby impeding the granting of summary judgment: (1) as Jones testified, the
Vestibule was “subject to constant inspection and cleaning” (id. at 11); (2) as depicted in the
Video: less than one hour before the Accident, two Company employees are adjusting floor mats
in the Vestibule (see id. at 12); approximately one-half-hour before the Accident, a Company
employee pulls a shopping cart from the Vestibule into the Store (see id.); the Company
“Greeter” 6 is seen, through the sliding glass separating the Store interior from the Vestibule,
standing just inside the Store interior (see id.); and, three different Company employees walk
through the Vestibule a few minutes before the Accident (see id.). Moreover, upon the record
presented, the Magistrate Judge concluded that a reasonable inference could be made that there
was water on the Vestibule floor given: the undisputed fact that it had rained for nearly twelve
hours prior to the Accident (see id.); the submission of a certified weather report regarding the

6

The Greeter is referred to as a “happy to help” employee in the Report. (See Report at 5.)
9

falling of approximately a half inch of rain within the Store’s vicinity over a 12-hour period just
preceding the Accident (see id.); the Video evidence depicting: several customers with umbrellas
walking into the Vestibule within the hour preceding the Accident (see id.), the area where
Plaintiff fell in the Vestibule not being mopped before the Accident (see id.), and another
customer falling in the Vestibule a few minutes before the Accident (see id.). Given the
cumulative effect of these events and “construing the facts in the light most favorable to the
[P]laintiff,” Magistrate Judge Brown found “a reasonable jury could conclude that [D]efendant
had constructive notice of the condition that caused [P]laintiff’s fall.” (Id. at 13.) In other
words, Plaintiff has adduced evidence upon which a jury could reasonably find for her, enabling
her to defeat the Summary Judgment Motion.
B. The Defendant’s Objection
Not unsurprisingly, WalMart does not object to Magistrate Judge Brown’s conclusion
that it did not create the Alleged Dangerous Condition that caused Plaintiff’s fall. Rather,
Defendant takes issue with the Magistrate Judge not finding, as a matter of law, that because the
water on the Vestibule floor was open and obvious and not inherently dangerous, WalMart was
alleviated of any duty to warn. (See Objection at 1-2 (generally); see also id. at 2 (discussing
“open and obvious” prong of analysis), at 3 (discussing “not inherently dangerous” prong of
analysis).) Defendant further contends that the Magistrate Judge’s conclusion that the water was
on the Vestibule floor for 50 minutes, is “improper in that it is drawing factual conclusions
instead of merely identifying issues”. (Id. at 3.) It argues that, based upon the record evidence,
Plaintiff “cannot establish constructive notice because the ‘telltale signs’ of a long-standing
condition are here absent.” (Id. at 4; see also id. at 5 (arguing “there is no way to tell when the
water came to be upon the floor” making “[t]he R&R’s suggestion that it came to be on the floor

10

because of . . . umbrellas . . . or because of being tracked-in on the soles of customers’ shoes[]
mere minutes before plaintiff’s fall . . . nothing more than impermissible speculation”).)
Walmart further objects to the Report asserting that the Magistrate Judge improperly
inferred constructive notice upon WalMart by utilizing the Company’s internal regulations
regarding store patrols, which is contrary to New York state law. (See id. at 6-8.) In that respect,
it claims that Magistrate Judge Brown was wrong to rely upon Jones’s testimony regarding
WalMart’s floor maintenance protocol and to find that the protocol should be a factor considered
in determining whether the Company had constructive notice of the Alleged Dangerous
Condition, as contrary to New York law. (See Objection at 7-8 (citing Byrd v. Walmart, Inc.,
128 A.D.3d 629, 630-31 (N.Y. App. 2d Dept. 2015)).) Finally, it claims the Magistrate Judge
erred by relying upon Chong and Spinner v. 1725 York Owners Corp., 56 A.D.3d 324, 324 (N.Y.
App. Div. 1st Dept. 2008) in concluding there are material disputed facts precluding
recommending the awarding of summary judgment, primarily arguing the cases’
distinguishabilities, to wit: compared with Chong, here, the Video does not depict persons
walking “gingerly and carefully” in the Vestibule within the half-hour preceding the Accident
(see Objection at 8-9); and, compared with Spinner, in this case, it had ceased raining before the
Accident and the Greeter had his back to the Vestibule (see id. at 9-10 (further noting that any
reliance upon the use of floor mats to establish constructive notice of a dangerous condition is no
longer good law in New York)).
C. The Plaintiff’s Response
In response, the Defendants state:
Defendant puts forth no meaningful challenge to the reasoning of
Judge Brown or the undisputed facts upon which his decision was
based. Indeed, [D]efendant does not even deny that the water is
what caused [P]laitniff’s fall or assert that the floor was in fact dry.
11

Defendant points to no legal or factual error that would require this
Court to second guess the careful work of Judge Brown and
engage in a de novo review.
(Response at 3.) More specifically, Plaintiff takes issue with Defendant’s objection based on its
“open and obvious” argument on several grounds: first, it is inconsistent with WalMart’s moving
argument “that there was no evidence that Walmart employees were ever aware that the floor
was wet” (Response at 4); second, Defendant is raising this argument for the first time in its
Objection, failing to put it forth in its moving papers (see id. at 4-5, 6); and, third, the Company’s
“open and obvious” argument “is premised upon a misstatement of New York Law.” (Id. at 5
(relying upon Cupo as the case articulating “the controlling legal standard”).) Moreover,
Plaintiff would have this Court reject WalMart’s contention that the Magistrate Judge reached a
conclusion as to how long water existed on the Vestibule floor, stating:
Judge Brown did not find that “water existed on the floor for 53
minutes before the plaintiff’s fall,” as [D]efendant contends.
Rather, after performing a careful review of the evidence and
construing the evidence in the light most favorable to the
[P]laintiff, Judge Brown held that a “reasonable jury can infer that
the [V]estibule floor where [P]laintiff fell was wet for
approximately fifty minutes, before [P]laintiff’s fall, which is
longer than the thirty minutes in Chong and the forty minutes in
Spinner.”
(Id. at 7 (quoting Report at 12-13); see also id. at 8 (listing undisputed evidence supporting
Magistrate Judge’s recommendation).)
Further, Plaintiff highlights that Magistrate Judge Brown’s finding a disputed question of
fact as to constructive notice did not, as WalMart suggests, rest exclusively upon the Company’s
internal floor maintenance protocols because, while “Judge Brown does reference the
[D]efendant’s policy of regular inspections at fifteen to twenty-minute intervals, he also points to
numerous other pieces of evidence demonstrating that Walmart employees were present in the

12

[V]estibule before the [A]ccident.” (Id. at 10 (listing additional evidence of WalMart
employees’ presence (citing Report at 11-12)).) She contends this is consistent with “New York
courts [which] have repeatedly found that, where defendants employees are present in the area of
plaintiff’s accident, constructive notice of a dangerous condition can be inferred.” (Id. at 10-11
(collecting cases).)
Finally, Plaintiff asserts that the Company, again, misstates the contents of Magistrate
Judge Brown’s Report when it claims the Magistrate Judge improperly relied upon Chong and
Spinner, countering:
a plain reading of the Report . . . shows that Judge Brown reached
his decision primarily by focusing on the facts of this case and
concluded correctly that a triable issue of fact existed as to the
issue of constructive notice. Any reference to Chong and Spinner
was simply for the proposition that ‘constructive notice can be
inferred by circumstantial evidence,’ a statement that the
[D]efendant does not dispute.
(Id. at 11 (quoting Report at 11).)
D. The Defendant’s Reply
Walmart filed a letter in reply to Plaintiff’s Response asking this Court to use its
discretion and consider its “open and obvious” argument asserting that since Magistrate Judge
Brown “concluded that [P]laintiff saw the water upon which she slipped before she ever slipped
upon it, it was proper for [WalMart] to argue that the water was open and obvious to the
[P]laintiff as a matter of law . . . .” (ECF No. 32 (quoting Amadasu v. Ngati, No. 05-cv-2585,
2012 WL 3930386, at *4 (E.D.N.Y. Sept. 9, 2012); further citation omitted).)
E. The Court’s Consideration of Defendant’s Objections
Having carefully reviewed the Company’s Objection, the Court finds no objections were
raised as to the Magistrate’s recommendations that “Wal-Mart indisputably did not create the

13

dangerous condition that caused [P]laintiff’s fall” (Report at 7) or that WalMart “did not, in fact,
have actual knowledge of the dangerous condition.” (Id. at 9.) Hence, no review of these
recommendations is required. See Thomas, 474 U.S. at 150. Rather, WalMart’s objections are
directed at the Report’s recommendation regarding constructive notice; however, an assessment
of them shows they are no more than conclusory and general, warranting review of the Report
for clear error. See, e.g., Butto, 290 F.R.D. at 379. However, in an abundance of caution, the
Court conducted a de novo review of the record as it relates to the Magistrate Judge’s
recommendation regarding constructive notice. Under either standard of review, no error is
found.
The Court begins by addressing WalMart’s Reply, with particular attention to its reliance
upon Amadasu, which is misplaced. First, the Company misquotes the case, stating “it is well
settled that a district court has ‘discretion to consider new arguments raised for the first time in
objection to a magistrate judge’s R&R.’” (Id. (purportedly quoting Amadasu, 2012 WL
3930386, at *4 (emphasis added)).) That is not so; the Amadasu Court stated that is was “new
evidence” which could be considered, see 2012 WL 3930386, at *4, but “[w]hether a party may
raise a new legal argument . . . for the first time in objections to an R & R has not yet been
decided in this Circuit.” Id. at *5 (citing Wells Fargo Bank, N.A. v. Sinnott, No. 07-cv-169, at *1
(D. Vt. Jan. 19, 2010)). The Amadasu Court followed the guidance of the Wells Fargo Court,
which considered the following six factors in deciding whether to consider a new argument made
in an objection to a report and recommendation and not presented to the magistrate judge:
(1) the reason for the litigant’s previous failure to raise the new
legal argument; (2) whether an intervening case or statute has
changed the state of the law; (3) whether the new issue is a pure
issue of law for which no additional fact-finding is required; (4)
whether the resolution of the new legal issue is not open to serious
question; (5) whether efficiency and fairness militate in favor or
14

against consideration of the new argument; and (6) whether
manifest injustice will result if the new argument is not considered.
Id. (citing Wells Fargo, 2010 WL 297830, at *4 (hereafter, the “Wells Fargo Factors”) (“In
applying the six factors, the Wells Fargo court noted that it was ‘[g]uided by the Second
Circuit’s standards for consideration of new legal arguments raised for the first time in a motion
for reconsideration, and its standard for considering new evidence in an objection to a magistrate
judge’s report and recommendation.’”)). Here, WalMart addresses only the first Wells Fargo
Factors, albeit in a cursory manner. Nonetheless, as: WalMart’s “open and obvious” argument is
one of pure law, not requiring any additional fact-finding; Plaintiff was able to raise her
opposition to Defendant’s new argument (see Response at 3, 4-5); and, relatedly, it is efficient
and not unfair to Plaintiff that the Court consider said argument, the Court has considered it in its
discretion, which, in the end, is unavailing.
Notwithstanding WalMart’s reliance upon the Cupo case, that court’s instructions
undermine the Company’s position that Magistrate Judge Brown erred in considering the
Company’s floor maintenance protocol when determining whether a disputed question of fact
exists as to WalMart having had constructive notice of the Alleged Dangerous Condition. As
stated, supra at p.8, the Cupo Court instructed, inter alia:
Where a plaintiff presented evidence that a dangerous condition
exists on the property, the burden shifts to the landowner to
demonstrate that [it] exercised reasonable care under the
circumstances to remedy the condition and to make the property
safe, based upon such factors as the likelihood of injury to those
entering the property and the burden of avoiding the risk.
Evidence that the dangerous condition was open and obvious
cannot relieve the landowner of this burden.
Cupo, 1 A.D.3d at 52 (emphasis added). The Court agrees with Plaintiff that the Company has
misstated New York state law regarding “open and obvious” dangers. (See Response at 5

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(“Courts have held repeatedly that the open and obvious nature of a dangerous condition does
not relieve a landowner of its obligation to maintain property in a reasonably safe condition but
can be used as evidence of the plaintiff’s comparative negligence.”).)
Moreover, to the extent Defendant focuses upon the Magistrate Judge’s consideration of
the Company’s floor maintenance protocol as alleged error, that focus is too myopic and, in any
event, unpersuasive. (Cf., Report at 4 (finding Jones’ testimony “was responding to ‘[a]ny kind
of wetness on the floor’” (quoting ECF No. 21-8 at 19:17), and Company’s floor maintenance
protocol “applie[s] to the situation at issue”), with Objection at 8 (“[T]he R&R is in error as the
[D]efendant’s purported failure to follow its own internal regulations cannot serve as a basis for
imposing liability against it in this matter.”).) Since WalMart may be charged with constructive
notice only where the alleged dangerous condition was visible and apparent for a sufficient
length of time to permit its employees to discover and remedy the condition, see Urrutia v.
Target Corp., 681 F. App’x 102, 104 (2d Cir. 2017)(summary order)(quoting Hartley v.
Waldbaum, Inc., 69 A.D.3d 902, 903 (N.Y. App. Div., 2d Dept. 2010)), it was not improper for
Magistrate Judge Brown to consider evidence of the Company’s floor maintenance protocol
because it provided a relevant temporal framework against which other, relevant evidence could
be considered, i.e., whether the Store employees had sufficient time to discover the condition and
to remedy it. Review of the Report demonstrates that this is precisely what the Magistrate Judge
did: against the floor maintenance protocol, Magistrate Judge Brown considered, e.g., the Video
evidence of several different employs entering, passing through, and being stationed within view
of the Vestibule, as well as additional record evidence regarding the earlier rainfall. Moreover,
de novo review of the record supports the Magistrate Judge’s recitation of the evidence. As
Plaintiff aptly states, “After performing a careful review of the evidence and construing the

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evidence in the light most favorable to the [P]laintiff, Judge Brown held that a ‘reasonable jury
can infer that the [V]estibule floor where [P]laintiff fell was wet for approximately fifty minutes,
before [P]laintiff’s fall, which is longer than the thirty minutes in Chong and the forty minutes in
Spinner.’” (Response at 7 (citing Report at 12-13); see also id. at 8 (listing undisputed evidence
upon which M.J. Brown based his recommendation).) Contrary to the Company’s
mischaracterization, the Magistrate Judge did not recommend the imposition of liability upon it
based upon its “purported failure to follow its own internal regulations” (Objection at 8); indeed,
Magistrate Judge Brown made no recommendation regarding liability. Nor, as discussed above,
did Magistrate Judge Brown base his recommendation that summary judgment be denied solely
upon consideration of the Store’s floor maintenance protocol; the protocol was utilized merely as
a temporal reference in assessing other evidence, which, considered together, raised a disputed
issue of fact for the factfinder. (See Report at 12-13.) Cf., Ghali v. Wal_Mart Stores East, LP,
No. 18-cv-2495, 2019 WL 1745704, at *7 (S.D.N.Y. Apr. 18, 2019) (“‘In the absence of proof as
to how long th[e] puddle of water was on the floor, there is no evidence to permit an inference
that the defendant had constructive notice of the condition on which the plaintiff fell.’
[Yearwood v. Cushman & Wakefield, Inc., 742 N.Y.S.2d 661] at (N.Y. App. Div. 2002)].
Plaintiff likewise cannot point to anything in the record to show that Wal-Mart failed to follow
its protocol for detecting and cleaning up spills. In fact, even after Plaintiff fell, he and
customers gestured toward the area, and a Wal-Mart employee walked over to it, the accident
area was not mopped or cleaned, suggesting that no water was visible.” (internal citations
omitted)), at *8-9 (granting summary judgment in WalMart’s favor because “[t]he record here
simply does [not] permit an inference of constructive notice, given the absence of evidence as to

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the visibility of the hazard or the length of time it was present” (emphasis added) (collecting
cases)).
Further, as to Walmart’s contention that the Magistrate Judge erroneously concluded that
water was on the Vestibule floor for a definitive period of time (see Objection at 3 (without
pinciting to Report, arguing Magistrate Judge improperly engaged in “drawing factual
conclusions instead of merely identifying issues”)), no such error is had as no such conclusion
was made. Rather, consistent with one of the Company’s moving arguments that “[t]o get to a
jury [P]laintiff must provide some basis for an inference that a substance was present for a long
enough period of time for the [D]efendant to both have discovered it and remedied it” (Support
Memo. (ECF No. 23) at 7 (citing Casierra v. Target Corp., No. 09-cv-1301, 2010 WL 2793778,
at *3 (E.D.N.Y. July 12, 2010))), based upon the record presented (see Report at 11-12), which
was construed in Plaintiff’s favor as the non-moving party, see Centro de la Comunidad
Hispana, 868 F.3d at 109, Magistrate Judge Brown found presented such evidence upon which a
reasonable jury: “c[ould] infer that the [V]estibule floor where [P]laintiff fell was wet for
approximately fifty minutes before [P]laintiff’s fall;” and, “could conclude that [D]efendant had
constructive notice of the condition that caused [P]laintiff’s fall.” (Report at 12-13.) Thus, upon
de novo review of the instant record, the Court finds no error in the Magistrate Judge’s
recommendation that whether WalMart had constructive notice of the Alleged Dangerous
Condition is a disputed question of fact precluding the granting of summary judgment.
The Court has considered the Company’s remaining arguments in support of its
objections to the Report and finds them to be without merit. Hence, after considering
Defendant’s objections to the Report on the issue of constructive knowledge and having
conducted a de novo review of the record as to that issue, the Defendant’s objections are

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overruled. Magistrate Judge Brown’s Report is adopted in its entirely, to wit, as to Plaintiff’s
Accident: (1) WalMart did not create the Alleged Dangerous Condition causing it; (2) WalMart
did not have actual knowledge of the Alleged Dangerous Condition causing it; but (3) it remains
a disputed question of fact whether WalMart had constructive knowledge of the Alleged
Dangerous Condition causing it.

V.

Conclusion
Accordingly, IT IS HEREBY ORDERED that the Defendants’ Summary Judgment

Motion is denied.
IT IS FURTHER ORDERED that the April 1, 2020 Status Conference, currently
scheduled for 11:15 a.m. in Courtroom 1010 of the Central Islip Federal Courthouse, will
commence at 11:00 a.m. and is converted to a telephonic Status Conference. At that time, the
Parties are to call Chambers’ teleconferencing number, [phone], and follow the
automated instructions; the access code is: 7215690.

Dated this 24th day of March 2020 at Central Islip, New York.
_/s/_Sandra J. Feuerstein__
Sandra J. Feuerstein
United States District Judge

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