Rivera v. Target Department Store, Inc.

Filing 37

OPINION AND ORDER re: 23 MOTION for Summary Judgment, filed by Target Department Store, Inc. Because plaintiff has failed to offer any evidence that the condition that caused plaintiff's fall existed for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it, plaintiff has failed to create an issue of fact as to whether defendant was on constructive notice of the condition. Defendant's motion for summary judgm ent (D.I. 23) is granted and the complaint is dismissed. The Clerk of the Court is respectfully requested to mark this matter closed, and as further set forth herein. (Signed by Magistrate Judge Henry B. Pitman on 6/21/2017) Copies transmitted by Chambers. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x
AIDA RIVERA,
Plaintiff,

15 Civ. 7846 (HBP)
OPINION
AND ORDER

-againstTARGET DEPARTMENT STORE, INC.,
Defendant.

-----------------------------------x
PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff Aida Rivera initially filed this action in
the Supreme Court of the State of New York in Bronx County
asserting a single cause of action for negligence against defendant Target Department Store Inc.

(see Complaint, dated Dec. 17,

2014, annexed as Ex. A to Declaration of Michael J. Crowley,
Esq., dated Nov. 14, 2016 (Docket Item ("D. I.")
Deel.")).

24)

("Crowley

On October 2, 2015, defendant removed the action to

this Court on the basis of diversity of citizenship pursuant to
28 U.S.C. Section 1332 (a) (1)
2015 (D.I. 1)).

(Notice of Removal, dated October 5,

The parties have consented to my exercising

plenary jurisdiction over this action pursuant to 28 U.S.C. §
636(c)

(Docket Item 12).

By notice of motion dated November 14, 2016 (D.I. 23),
defendant moves for an Order, pursuant to Fed.R.Civ.P. 56,
granting summary judgment and dismissing the complaint.

For the

reasons set forth below, defendant's motion is granted and the
complaint is dismissed.

II.

Facts

Thi~

action involves a slip and fall that occurred on

the evening of July 4, 2014 sometime before 8:45 p.m. at a Target
store located in Mount Vernon, New York (see Guest Incident
Report, dated July 4, 2014
Ex. D to Crowley Deel.).

("Guest Incident Report"), annexed as
Plaintiff went to the store at approxi-

mately 6:30 p.m. with her adult daughter, two grandchildren and
friend,

Indira Melara (Deposition of Aida Rivera, dated Mar. 1,

2016 ("Rivera Dep. ") at 16, annexed as Ex.

I to Crowley Deel.).

Plaintiff and her companions were in the store between one hour
and one and one-half hours prior to the incident that gives rise
to this lawsuit (Rivera Dep. at 18).

Prior to the incident, Ms.

Melara and plaintiff's grandchildren separated from the group and
went to the toy department (Rivera Dep. at 19).

Plaintiff and

her daughter, Arlene Melendez, were together for the duration of
their visit to the store (Rivera Dep. at 19, 21).

2

Plaintiff's fall occurred as plaintiff and her daughter
were walking together from the sports department towards the toy
department to meet Ms. Melara and plaintiff's grandchildren
(Rivera Dep. at 25).

Plaintiff's left foot slipped on a puddle

of water on the white-tiled floor and she fell
21-22, 25-26, 34).

(Rivera Dep. at

Plaintiff had not previously walked in this

area during this particular visit to the Target store and did not
see the water on the floor before she slipped and fell
Dep. at 20-22).

Plaintiff testified that, as she fell,

(Rivera
she

observed a puddle of water on the floor that was between five and
six feet long and two to three feet wide (Rivera Dep. at 21-22).
Plaintiff did not know how the water came to be on the floor or
how long the water had been on the floor prior to the incident
(Rivera Dep. at 22).
Plaintiff testified that, after the fall,

she spoke

with a female security guard, informed her of the accident and
asked to speak to a manager (Rivera Dep. at 29-30).
Target employee Dermaine Brown also came to the scene
after plaintiff's accident and prepared a written statement (see
Team Member Witness Statement of Dermaine Brown, dated July 4,
2014,
Deel.)

("Brown Witness Statement"), annexed as Ex. H to Crowley
Mr. Brown noted that the floor was wet when he arrived

3

at the scene but that "after a while the wet spot dried up"
(Brown Witness Statement).
Victor Hernandez, Executive Team Leader ("ETL")

for

Sales Floor Operations at the Target store, spoke with plaintiff
following the incident and prepared a Guest Incident Report and a
Leader on Duty ("LOO")

Investigation Report

(Deposition of Victor

Hernandez, dated Mar. 10, 2016 ("Hernandez Dep.")

at 18,

41-42,

61--62, annexed as Ex. K to Crowley Deel.; Guest Incident Report;
LOO Investigation Report, dated July 4,
Crowley,

Deel.).

2014, annexed as Ex. E to

Mr. Hernandez testified that pursuant to

Target's protocol, all Target employees are trained to continuously walk the store and inspect the floor for any hazards
(Hernandez Dep. at 11-12, 22-23).

There was no scheduled time

for a Target employee to sweep or mop the floor during open hours
(Hernandez Dep. at 29).
customer had a complaint,
(Hernandez Dep. at 32).

Mr. Hernandez testified that if the
it would be reported to the LOO
He further testified that he had not

been notified of any spills or wet conditions within the Target
store anytime after 7:00 p.m., on July 4, 2014

(Hernandez Dep. at

32-33) .
Mr. Hernandez filled out the Guest Incident Report
based on plaintiff's description of the incident
at 41-42,

45-48).

(Hernandez Dep.

The Guest Incident Report notes that plaintiff
4

slipped as a result of a "wet spot on the floor" that had dried
up by the time Mr. Hernandez arrived (Guest Incident Report).
The LOO Investigation Report consists of a statement from Mr.
Hernandez describing his observations of the subject incident
(Hernandez Dep. at 61-62).

The LOO Investigation Report notes

that there were drops of water or other liquid on the floor after
plaintiff fell

(LOO Investigation Report).

The LOO Investigation

Report also notes that that the liquid on the ground dried up
"very quick [ ly]"

(LOO Investigation Report) .

Ms. Melendez testified at her deposition that she had
been walking with plaintiff immediately prior to the incident and
that plaintiff had been holding Ms. Melendez's arm for support as
a result of plaintiff's recent knee surgery (Deposition of Arlene
Melendez, dated Mar. 1, 2016 at 12 ("Melendez Dep."), annexed as
Ex. J to Crowley Deel.)

Ms. Melendez did not notice anything on

the floor prior to plaintiff's fall

(Melendez Dep. at 13-14).

Following plaintiff's fall, Ms. Melendez noticed that plaintiff's
pants were wet and that there was a puddle of clear liquid
approximately two feet wide on the floor
14).

(Melendez Dep. at 13-

Ms. Melendez testified that she did not know where the

liquid came from or how long it had been on the floor prior to
plaintiff's fall

(Melendez Dep. at 14-15).

5

Ms. Melara testified that she arrived at the scene of
plaintiff's fall after hearing Ms. Melendez call out that plaintiff had fallen (Deposition of Indira Melara, dated Oct. 10, 2016
("Melara Dep.") at 12, annexed as Ex. M to Crowley Deel.).

Ms.

Melara testified that the liquid on the floor where plaintiff
fell was colorless

(Melara Dep. at 25).

Ms. Melara did not

notice any liquid on the floor in the incident area prior to
plaintiff's fall and did not know the source of the water or how
long it had been there (Melara Dep. at 13-14, 17).
Ms. Tamisha Mccrae, an acquaintance of plaintiff, was
also shopping at the subject Target store on the evening of July
4, 2014 and saw plaintiff and Ms. Melendez shortly after entering
the store (Deposition of Tamisha Mccrae, dated Oct. 10, 2016
(Mccrae Dep.) at 6-7, 8-10, annexed as Ex. L to Crowley Dep.)
Ms. Mccrae later observed plaintiff lying on the floor and
learned that she had fallen (Mccrae Dep. at 10-12).

Ms. Mccrae

did not see plaintiff fall and did not know what caused plaintiff
to fall

(Mccrae Dep. at 11-12).

At some point prior to plain-

tiff's accident, Ms. Mccrae had passed through the area where
plaintiff fell and had not noticed any water or any other debris
on the floor

(Mccrae Dep. at 12-13).

Plaintiff testified that following her fall at the
Target store, she experienced pain and swelling in her knees and
6

sought medical treatment (Rivera Dep. at 34-45).

Plaintiff also

testified that she had pain in her lower back but that she did
not seek medical treatment for that condition (Rivera Dep. at
46) .

III.

Analysis

A.

Applicable Legal Principles

1.

Summary Judgment Standard

The standards applicable to a motion for summary
judgment are well-settled and require only brief review.
Summary judgment may be granted only where there is no
genuine issue as to any material fact and the moving
party .
. is entitled to a judgment as a matter of
law.
Fed.R.Civ.P. 56(c).
In ruling on a motion for
summary judgment, a court must resolve all ambiguities
and draw all factual inferences in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986).
To grant the motion, the court must determine that
there is no genuine issue of material fact to be tried.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.
Ct. 2548, 91 L.Ed.2d 265 (1986).
A genuine factual
issue derives from the "evidence [being] such that a
reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct.
2505.
The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S. Ct. 1348, 89 L.Ed.2d 538 (1986), or by a factual
argument based on "conjecture or surmise," Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
The Supreme Court teaches that "all that is required [from a
7

nonmoving party] is that sufficient evidence supporting
the claimed factual dispute be shown to require a jury
or judge to resolve the parties' differing versions of
the truth at trial." First Nat'l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575,
20 L.Ed.2d 569 (1968); see also Hunt v. Cromartie, 526
U.S. 541, 552, 119 S. Ct. 1545, 143 L.Ed.2d 731 (1999).
It is a settled rule that "[c]redibility assessments,
choices between conflicting versions of the events, and
the weighing of evidence are matters for the jury, not
for the court on a motion for summary judgment."
Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)
McClellan v. Smith, 439 F.3d 137, 144

(2d Cir. 2006)

(brackets in

original); accord Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150-51 (2000)

1

;

Estate of Gustafson ex rel. Reginella

v. Target Corp., 819 F.3d 673,
N.Y.C. Transit,

675 (2d Cir. 2016); Cortes v. MTA

802 F.3d 226, 230

(2d Cir. 2015); Deep Woods

Holdings, L.L.C. v. Savings Deposit Ins. Fund of Republic of
Turk., 745 F.3d 619,

622-23

(2d Cir. 2014); Hill v. Curcione,

657

F.3d 116, 124 (2d Cir. 2011)
"Material facts are those which 'might affect the
outcome of the suit under the governing law'
Bear Stearns & Co., 499 F.3d 144, 148

"

Coppola v.

(2d Cir. 2007), quoting

Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248.

"'[I] n

ruling on a motion for summary judgment, a judge must ask himself

1

Although the Court in Reeves was reviewing the denial of a
motion for judgment as a matter of law pursuant to Fed.R.Civ.P.
50, the same standards apply to a motion for summary judgment
pursuant to Fed.R.Civ.P. 56.
Reeves v. Sanderson Plumbing
Prods., Inc., supra, 530 U.S. at 150-51.
8

not whether he thinks the evidence unmistakably favors one side
or the other but whether a fair-minded jury could return a
verdict for the [non-movant] on the evidence presented[.]"'
SK8,

Inc. v. Town of Henrietta, 507 F.3d 778, 788

(second alteration in original), quoting Readco,
Midland Bank, 81 F. 3d 295, 298

Cine

(2d Cir. 2007)
Inc. v. Marine

(2d Cir. 1996).

Entry of summary judgment is appropriate "against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

"In such a

situation, there can be 'no genuine issue as to any material
fact,'

since a complete failure of proof concerning an essential

element of the nonmoving party's case necessarily renders all
other facts immaterial."

Celotex Corp. v. Catrett, supra,

477

U.S. at 322-23, quoting Fed.R.Civ.P. 56; accord Crawford v.
Franklin Credit Mgmt. Corp., 758 F.3d 473,

486 (2d Cir. 2014)

("[W]here the nonmoving party will bear the burden of proof on an
issue at trial,

the moving party may satisfy its burden [on a

summary judgment motion] by point[ing] to an absence of evidence
to support an essential element of the nonmoving party's case."
(inner quotations and citations omitted, last alteration in
original)).
9

2.

Governing
Substantive Law

The parties agree that New York substantive law governs
defendant's motion because this is a diversity action arising out
of events that occurred in New York (Memorandum of Law in Supp.
of Mot. for Summary Judgment, dated Nov. 14, 2016 (D.I. 25)
("Def. Mem.") at 9; Pl. Memorandum of Law in Opp. to Def. Target's Mot. for Summary Judgment, dated Dec. 29, 2016 (D.I. 32)
("Pl. Mem. ") at 8).

See Urrutia v. Target Corp., 16-1816-CV,

2017 WL 902607 at *l (2d Cir. Mar. 3, 2017)

(summary order).

"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), quoting Solomon ex rel.
Solomon v. City of New York,

66 N.Y.2d 1026, 1027, 489 N.E.2d

1294, 1294, 499 N.Y.S.2d 392, 392

(1985).

To establish negligence in a premises liability case
arising out of a fall,

a plaintiff must show that the "defendant

created the condition which caused the accident or that the
defendant had actual or constructive notice of the condition."
Hartley v. Waldbaum,
273

Inc.,

69 A.D.3d 902,

903, 893 N.Y.S.2d 272,

(2d Dep't 2010); see also Gorecki v. Painted Pony Champion10

ship Rodeo,

Inc.,

6 F. App'x 103, 105 (2d Cir. 2001)

order); Dranoff v. Sam's East, Inc.,

(summary

supra, 2017 WL 1437207 at

*3; Gonzalez v. Wal-Mart Stores, Inc., 299 F. Supp. 2d 188, 192
(S.D.N.Y. 2004)

(Koeltl, D.J.).

If this action had remained in state court, in order to
prevail on its motion for summary judgment, defendant would have
had to demonstrate that there was no genuine issue that it did
not have actual or constructive notice of the condition that
plaintiff alleges caused her fall.

See Groninger v. Vill. of

Mamaroneck, 17 N.Y.3d 125, 129, 950 N.E.2d 908,

910,

927 N.Y.S.2d

304, 306 (2011); Rodriguez v. White Plains Pub. Sch.,

35 A.D.3d

704, 705, 826 N.Y.S.2d 425, 426 (2d Dep't 2006); Armstrong v.
Ogden Allied Facility Mgmt. Corp., 281 A.D.2d 317, 318, 722
N.Y.S.2d 503, 505 (1st Dep't 2001)

However, because the action

has been removed to federal court, Rule 56's burden allocation
scheme applies, and a defendant's motion in a premises liability
case will ordinarily be granted unless plaintiff offers evidence
sufficient to create a genuine issue of fact that defendant had
actual or constructive notice of the allegedly dangerous condition.

Tenay v. Culinary Teachers Ass'n of Hyde Park, 281 F.

App'x 11, 12-13 (2d Cir. 2008)

(summary order); Seixas v. Target

Corp., 15-cv-3851 (ERK) (RML), 2017 WL 2178425 at *2
16, 2017); Dranoff v. Sam's East,
11

Inc., 16 Civ. 6482

(E.D.N.Y. May
(CS), 2017

WL 1437207 at *2-*3 (S.D.N.Y. Apr. 20, 2017)
Casierra v. Target Corp.,
at *l & n.l

09-CV-1301

(Seibel, D.J.);

(JG) (MDG),

2010 WL 2793778

(E.D.N.Y. July 12, 2010); Tingling v. Great Atl. &

Pac. Tea Co., 02 Civ. 4196
(S.D.N.Y. Dec. 17, 2003)

(NRB), 2003 WL 22973452 at *2

(Buchwald, D.J.).

Defendant's motion addresses only the issue of notice;
it claims that there is no evidence sufficient to give rise to a
genuine issue of fact that it had actual or constructive notice
of the water on which plaintiff slipped (Def. Mem. at 1).

In her

opposition, plaintiff does not contend that defendant created the
condition that caused her fall

(see Pl. Mem.).

Rather, plaintiff

argues that there is a question of fact as to whether defendant
had actual or constructive notice of the allegedly dangerous
condition (Pl. Mem. at 1, 7).

a.

Actual Notice

"Actual notice requires that a defendant receive
complaints or similarly be alerted to the existence of the
dangerous condition."
App'x 10, 12

Nussbaum v. Metro-N. Commuter R.R.,

(2d Cir. 2015)

(summary order), citing Matcovsky v.

Days Hotel, 10 A.D.3d 557, 558, 782 N.Y.S.2d 64,
2004);

~also

603 F.

65

(1st Dep't

Quarles v. Columbia Sussex Corp., 997 F. Supp.

327, 332 (E.D.N.Y. 1998)

(to show actual notice, the plaintiff
12

must "prove that the defendants were, in fact, aware of the
dangerous condition.") .
defect if they .

''Defendants have actual notice of a

. received reports of it such that they have

actual knowledge of the defect's existence."
Sussex Corp., supra,

997 F. Supp. at 332.

Quarles v. Columbia

Thus, courts applying

New York law have rejected allegations of actual notice where
defendant has presented evidence that, before the accident,
defendant's employees who were responsible for the area were
unaware of the alleged condition and had not received complaints
about the area.
571,

See Gomez v. J.C. Penny Corp., 113 A.D.3d 571,

979 N.Y.S.2d 323, 324

(1st Dep't 2014)

("Defendant estab-

lished prima facie that it did not have actual notice by presenting evidence that, before the accident, the department supervisor
who was responsible for the area was unaware of the alleged[ly]
wet condition and that the loss prevention officer had received
no complaints about the area."); Early v. Hilton Hotels Corp., 73
A.D.3d 559, 561, 904 N.Y.S.2d 367, 369 (1st Dept 2010)

(on motion

for summary judgment, absence of actual notice was demonstrated
by defendant's employee's uncontradicted testimony that he had
not received complaints about and had not observed the condition
prior to plaintiff's accident).

13

b.

Constructive Notice

"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."
67 N.Y.2d 836,

837,

Gordon v. Am. Museum of Nat. History,

492 N.E.2d 774,

775,

501 N.Y.S.2d 646,

(1986); accord Nussbaum v. Metro-N. Commuter R.R.,
App'x at 12

supra,

647
603 F.

("To prove liability based on constructive notice,

the danger must have been 'visible and apparent and it must exist
for a sufficient length of time prior to the accident to permit
[the defendant]
Sutton,
2000)

to discover and remedy it,'" quoting Lemonda v.

268 A.D.2d 383, 384, 702 N.Y.S.2d 275,

276

(1st Dep't

(alteration in original)); Salerno v. North Colonie Cent.

School Dist.,
Dep't 2008)

52 A.D.3d 1145, 1147,

(same).

861 N.Y.S.2d 811,

813

(3d

"The absence of evidence demonstrating how

long a condition existed prior to a plaintiff's accident constitutes a failure to establish the existence of constructive notice
as a matter of law."

Early v. Hilton Hotels Corp.,

supra,

73

A.D.3d at 561,

904 N.Y.S.2d at 369; accord Nussbaum v. Metro-N.

Commuter R.R.,

994 F. Supp.

(Roman,

D.J.), aff'd,

2d 483,

494-95

603 F. App'x 10

order); Robinson v. Wal-Mart Stores,

14

(S.D.N.Y.

(2d Cir. 2015)

2014)
(summary

37 F. Supp. 2d 605,

607

(W.D.N.Y. 1999), aff'd, 242 F.3d 367, 2000 WL 1811070 (Table)
Cir. 2 000)

(2d

(summary order) ; Baxter v. Jackson Terrace As socs., 4 3

A.D.3d 968,

969, 842 N.Y.S.2d 78, 79 (2d Dep't 2007); O'Callaghan

v. Great Atl.

& Pac. Tea Co.,

358, 359 (2d Dep't 2002).

294 A.D.2d 416, 417, 742 N.Y.S.2d

"Thus, in cases where the plaintiff is

unable to establish how long the condition causing the accident
existed prior to the accident, courts have entered summary
judgment in favor of the defendant."

Stephanides v. BJ's Whole-

sale Club, Inc., No. 12-CV-83 (CLP), 2013 WL 1694901 at *5
(E.D.N.Y. Apr. 18, 2013)

(collecting cases); see also

Borrero-Carrasquillo v. Target Dept. Stores Inc., 15 Civ. 4518
(GBD), 2017 WL 700720 at *3-*4

(S.D.N.Y. Feb. 10, 2017)

D.J.); Strass v. Costco Wholesale Corp., 14-CV-06924

(Daniels,

(PKC) (VMS),

2016 WL 3448578 at *3-*8 (E.D.N.Y. June 17, 2016); Lionel v.
Target Corp., 44 F. Supp. 3d 315, 323-24 (E.D.N.Y. 2014);
Casierra v. Target Corp., supra, 2010 WL 2793778 at *3; DeAngelis
v. Am. Airlines, Inc., supra, 2010 WL 1292349 at *6; Cerkowski v.
Price Chopper Operating Co.,

Inc.,

68 A.D.3d 1382, 1385, 891

N.Y.S.2d 192, 195 (3d Dep't 2009); Maguire v. Southland Corp.,
245 A.D.2d 347, 348, 665 N.Y.S.2d 680,

681

(2d Dep't 1997).

When there is no direct evidence to demonstrate actual
or constructive notice, the plaintiff may consider circumstantial
evidence from which it can be inferred that the condition that
15

caused plaintiff's injury was visible and apparent and existed
for a sufficient length of time for defendant to discover and
remedy it.

See Seixas v. Target Corp., supra, 2017 WL 2178425 at

*3 (finding an issue of fact as to constructive notice where
puddle of spilled soap was smeared and speckled with grime,
suggesting that the puddle had existed for substantial period of
time); Touri v. Zhagui, 06 Civ. 776 (SCR) (JFK), 2010 WL 779335 at
*5 (S.D.N.Y. Mar. 5, 2010)

(Keenan, D.J.)

(denying summary

judgment on the issue of constructive notice because plaintiff
presented sufficient circumstantial evidence of the existence of
the lighting problem for "some time" because "the exposed electrical wires appeared old and frayed," citing Lyden v. Rasa, 39
A.D.2d 716, 717, 331 N.Y.S.2d 982,

984

(2d Dep't 1972)

(evidence

was sufficient to support recovery under N.Y. General Municipal
Law Section 205-e because "[t]he fire escape was rusty

a

condition which did not occur overnight.")); Giuffrida v. Metro
N. Commuter R.R. Co., 279 A.D.2d 403,
(1st Dep't 2001)

405, 720 N.Y.S.2d 41,

42-43

("consistent description of the substance as a

'stain' and 'dry' and 'solid' is evidence from which a jury would
be warranted in finding that the condition had been present for a
substantial period of time").
However, plaintiff may not meet her burden through
speculation as to the amount of time the condition existed before
16

the accident.

As the New York Court of Appeals explained in

Gordon v. Am. Museum of Nat.
492 N.E.2d at 775,

History,

supra,

67 N.Y.2d at 838,

501 N.Y.S.2d at 647,

[t]he record contains no evidence that anyone, including plaintiff, observed the [paper on which plaintiff
slipped] prior to the accident.
Nor did he describe
the paper as being dirty or worn, which would have
provided some indication that it had been present for
some period of time.
Thus, on the evidence presented,
the piece of paper that caused plaintiff's fall could
have been deposited there only minutes or seconds
before the accident and any other conclusion would be
pure speculation.
See also Aggrey v.
(FM),

Stop & Shop Supermarket Co.,

2002 WL 432388 at *4

(S.D.N.Y. Mar.

00 Civ. 7999

19, 2002)

(Maas, M.J.)

(granting summary judgment for defendant and noting that "[i]n
the absence of any circumstances suggesting that the grape(s)
[plaintiff slipped on] had been on the floor for an extended
period,

the Court would consequently be required to engage in

sheer speculation to find the constructive notice element met in
this case"); Rojas v. Supermarkets Gen. Corp.,
394,

656 N.Y.S.2d 346,

348

(2d Dep't 1997)

238 A.D.2d 393,

("any finding that the

[condition] had been on the floor for any appreciable period of
time would be mere speculation"

(internal quotation marks and

citation omitted)).

17

B.

Application of
the Foregoing Principles

1.

Actual Notice

There is no evidence in the record indicating that
defendant had actual notice of water on the floor in the area of
plaintiff's fall at any time prior to plaintiff's accident.
Plaintiff's naked assertion that a jury could infer that an
employee of defendant actually saw the puddle (Pl. Mem. at 7)

is

unsupported by any affidavit, testimony or other material that
has evidentiary weight and is, therefore, insufficient to establish a genuine issue of material fact.

2

See Belgrave v. Pena, 98

2

Although it is uncontradicted, I do not consider Mr.
Hernandez's testimony that he had not seen the puddle and had not
received any complaints about it in the hours prior to
plaintiff's accident (Hernandez Dep. at 32-33).
As explained in
McClellan v. Smith, supra, 439 F.3d at 148, a court cannot make
credibility determinations or weigh the evidence in ruling on a
motion for summary judgment.
Rather,
the court must draw all reasonable inferences in favor
of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.
Lytle v.
Household Mfg., Inc., 494 U.S. 545, 554-555 (1990);
Liberty Lobby, Inc., supra, at 254; Continental Ore Co.
v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, n.6
( 19 62) .
"Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a
judge." Liberty Lobby, supra, at 255.
Thus, although
the court should review the record as a whole, it must
disregard all evidence favorable to the moving party
(continued ... )
18

Civ. 2517

(DAB) (HBP), 2000 WL 1290592 at *4 n.5

13, 2000), aff'd,

254 F.3d 384

(2d Cir. 2001); Bonaparte v. New

York City Dep't of Housing Preservation & Dev.,
(DC), 1997 WL 148252 at *5

(S.D.N.Y. Sept.

94 Civ. 5106

(S.D.N.Y. March 31, 1997)

(Chin, then

D.J., now Cir. J.); Parada Jimenez v. Mobil Oil Co. de Venezuela,
S.A.,

90 Civ. 5938

1991)

(SWK),

1991 WL 64186 at *3

(S.D.N.Y. Apr. 18,

(Kram, D.J.).
Therefore, because plaintiff has failed to offer any

evidence that defendant was on actual notice of the puddle,
defendant is entitled to summary judgment on this aspect of
plaintiff's claim.

2.

Constructive Notice

Defendant is also entitled to summary judgment on the
issue of constructive notice because plaintiff has failed to

2

( •••

continued)
that the jury is not required to believe.
See Wright &
Miller 299.
That is, the court should give credence to
the evidence favoring the nonmovant as well as that
"evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent
that that evidence comes from disinterested witnesses."
Id., at 300.

Reeves v. Sanderson Plumbing Prods., Inc., supra, 530 U.S. at
150-51; accord In re Dana Corp., 574 F.3d 129, 152 (2d Cir.
2009); Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir. 2001)
Because Mr. Hernandez does not qualify as a disinterested
witness, I cannot credit his testimony.
19

offer any evidence that would demonstrate that the water was
present for a sufficient period of time prior to plaintiff's
accident to provide defendant's employees an opportunity to
discover and clean it up.

Plaintiff has not cited any evidence

establishing or even suggesting how long the puddle had been on
the floor prior to plaintiff's fall.
The only evidence in the record concerning the condition of the floor prior to plaintiff's accident is the testimony
of plaintiff's acquaintance, Ms. Mccrae, who testified that she
had walked in the area where plaintiff fell at some unspecified
time earlier in the evening and had not noticed any water or
debris on the floor 3 (Mccrae Testimony at 12-13)

Every other

witness, including plaintiff, testified that he or she
the water only after plaintiff fell

observed

(Rivera Dep. at 20-22;

Hernandez Dep. at 32-33; Melendez Dep. at 13-14; Melara Dep. at
13-14, 17; Mccrae Dep. at 12-13).

Plaintiff offers no circum-

stantial evidence concerning the condition of the puddle -- such
as the presence of debris, footprints or trackmarks -- from which
the duration of its existence can be inferred.

Thus, there is a

total lack of evidence concerning the length of time the puddle
existed before plaintiff's accident.

3

Because plaintiff proffers

Ms. Mccrae was not asked to specify the precise time she
passed through the accident area prior to plaintiff's fall.
20

no evidence showing that the puddle on which she slipped was
visible or apparent for a sufficient amount of time before the
fall,

she has failed to put forth any evidence that defendant had

constructive notice of it.
Plaintiff relies on Donaldson v. Target, Inc.,
05-CV-0378

(NG) (KAM),

2006 WL 3371637

(E.D.N.Y. Nov. 20, 2006)

for the proposition that the issue of whether a defendant had
sufficient time to discover and remedy a hazardous condition
should generally be left to the jury (Pl. Mem. at 7).

The

pertinent portion of that decision reads as follows:
Viewing the evidence in the light most favorable
to plaintiff, the court finds that there is a genuine
issue of material fact in dispute as to whether defendant had constructive notice of the dangerous condition, specifically, whether the soda, on which plaintiff slipped and fell, was on the floor for a sufficient period of time for defendant's employees to
discover the spill and clean it up.
Under the facts of
this case, the issue of whether the amount of time is
sufficient to warrant a finding of constructive notice
of a hazard is an issue for the trier of fact.
2006 WL 3371637 at *l.

Because the published decision does not

provide any insight into the facts of the case or the materials
submitted in support of and in opposition to the motion for
summary judgment, Donaldson cannot fill the evidentiary void in
this case concerning the length of time the puddle existed.
Donaldson cannot rationally be read to suggest that there is

21

always an issue of fact concerning constructive notice in all
premises liability cases.
Plaintiff also relies on Chong v. Target Corp., supra,
2015 WL 2250250,

for the proposition that where a defendant does

not contest that an area is under "constant inspection," the
presence of a large puddle of liquid on the floor is sufficient
to create an issue of fact concerning constructive notice (Pl.
Mem. at 6).

Chong is distinguishable on its facts.

In Chong,

there was videotape evidence suggesting that the dangerous
condition existed throughout the thirty-minute period preceding
the plaintiff's fall.

Specifically, the videotape record of that

period showed patrons attempting to walk around the area in which
plaintiff fell.

2015 WL 2250250 at *4.

Plaintiff also argues that "common experience" would
indicate that the sheer size of the puddle described by plaintiff
"of five or six feet in length and two to three feet in width"
is sufficient to establish that the puddle was on the floor "for
a sufficient length of time prior to the accident"
6).

(Pl. Mem. at

This argument simply defies common sense and experience.

The size of a puddle evidences the amount of fluid spilled, but
provides no information concerning the duration of the puddle's
existence; a quart of water spilled on the floor will result in a
large puddle immediately after the spill as well as one-half hour
22

after the spill.
2016 WL 3448578

See Strass v. Costco Wholesale Corp., supra,
("circumstantial evidence that [plaintiff]

slipped on a large puddle, without more, does not support an
inference that the puddle had existed for enough time to allow
[an employee of the defendant]

to discover the spill and clean it

up").
Plaintiff argues that,

"several employees

. toured

and inspected the area where the accident occurred" and that "a
reasonable jury could infer that a Target employee observed, or
should have observed, and remedied the spill long before it
caused plaintiff's accident"

(Pl. Mem. at 7).

This argument

assumes the puddle existed "long before" plaintiff's accident.
As explained above,

there is simply no evidence that could

support this finding.

Although Mr. Hernandez testified that

defendant's employees were directed to constantly look for debris
on the floor,

he also testified that he was not informed of any

spills in the entire retail area of the subject store in the
hours prior to plaintiff's accident
"[A]

(Hernandez Dep. at 32-33)

'general awareness' that a dangerous condition may be

present is legally insufficient to constitute notice of the
particular condition that caused plaintiff's fall."
Culinary Teachers Ass'n of Hyde Park, supra,

Tenay v.

281 F. App'x at 14,

quoting Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967,
23

969,

646 N.E.2d 795, 796,

622 N.Y.S.2d 493, 494

(1994); see Lionel v.

Target Corp., supra, 44 F. Supp. 3d at 323 ("Plaintiff's argument
that she fell in an area that was 'regularly traversed' by
Defendant's employees

. is insufficient to defeat summary

judgment, absent some evidence that the lid was on the floor long
enough that an employee should have walked through the area and
observed it.").
Therefore, because plaintiff has failed to offer any
evidence that the condition that caused plaintiff's fall existed
for a sufficient length of time prior to the accident to permit
defendant's employees to discover and remedy it, plaintiff has
failed to create an issue of fact as to whether defendant was on
constructive notice of the condition.

24

IV.

Conclusion

Accordingly, for the foregoing reasons, defendant's
motion for summary judgment (D.I. 23)
plaint is dismissed.

is granted and the com-

The Clerk of the Court is respectfully

requested to mark this matter closed.

Dated:

New York, New York
June 21, 2017
SO ORDERED,

HENRYPiTN
United States Magistrate Judge

Copies transmitted to:
All Counsel

25