Opinion
No. 00 CIV. 8679 (DLC).
August 28, 2001.
Attorney For Plaintiff: Lisa Lynn Grieco, Law Offices of Alvin M. Bernstone, New York, NY.
Attorney For Defendant: Henry M. Primavera of Kral, Clerkin, Redmond, Ryan, Perry Girvan, Mineola, NY.
MEMORANDUM OPINION AND ORDER
This is a diversity action arising out of an accident in which plaintiff Shirley Fleming ("Fleming") fell in front of the bakery section of a Pathmark Stores, Inc. supermarket ("Pathmark") located in the Bronx, New York. The defendant has moved for summary judgment. For the reasons set forth below, the motion is denied.
BACKGROUND
The following facts are undisputed unless otherwise noted. On April 5, 2000, at about 5 p.m., plaintiff Shirley Fleming ("Fleming") and her friend Lillie Britton ("Britton") went to Pathmark to fill a prescription and to buy a birthday cake for one of the children Fleming babysits. After filling her prescription, Fleming went to the store's bakery section to buy a cake. At approximately 5:45 p.m., Fleming slipped and fell on a "yellow powdery wet substance" in the bakery aisle. Fleming believed she had been in the store "maybe 30 minutes, 35 minutes" before the accident.
Before she fell, Fleming did not hear any announcements over the public address system. Fleming states that she did not look at the floor near the bakery section before she fell, but estimates that the yellow substance was about eight feet long and one and a half feet wide. She did not observe any footprints, track marks, or dirt or debris in the yellow substance on the floor, and did not know how long the substance was on the floor, or how it got there.
In her affidavit, Britton states that, while Fleming was waiting in line to fill her prescription in the store's pharmacy section, she went to the bakery section to look at the cakes. At that time, Britton saw "a yellow powder which looked like it could be slippery." Britton states that "it appeared that the power had been placed, or dropped, over a liquid under it," possibly to absorb the liquid. The yellow substance on the floor was about 10 feet in front of the bakery freezer. Britton states that she returned to the pharmacy section to tell Fleming about a cake she had selected; she told Fleming about the cake, but did not tell her about the yellow substance. Because Fleming was in a long line at the pharmacy, Britton left Pathmark and went to Barnes Noble, which was about a half block away. Britton states that she placed an order for a book on tape at Barnes Noble, and returned to Pathmark. When she returned to Pathmark, she headed towards the bakery freezer to look for Fleming. Britton states that when she arrived at the bakery section, she saw two workers helping Fleming up from the floor. Britton states that Fleming's black coat was covered in "yellow gook."
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
In order to make a prima facie case of negligence, Fleming must prove, among other things, either that Pathmark created the dangerous condition on the store's floor, or that it had actual or constructive notice of the condition and failed to correct it within a reasonable time. Taylor v. United States, 121 F.3d 86, 89 (2d Cir. 1997) (applying New York law);Olesky v. National R.R. Passenger Corp., No. 97 Civ. 3529 (MJL) (KTD), 1999 WL 595637, at *1 (S.D.N.Y. 1999); Viskovic v. Enk Enters, Inc., 723 N.Y.S.2d 518, 519 (2d Dep't 2001).
While the parties have not addressed the choice of law on this or any other issue, plaintiff's accident happened in New York, and the defendant corporation conducts business in New York. Accordingly, New York law applies.
In order to show constructive notice, Fleming must prove that "'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.'" Taylor v. United States, 121 F.3d at 90 (quoting Gordon v. American Museum of Natural History, 501 N.Y.S.2d 646, 647 (N.Y. 1986)); see also Olesky, 1999 WL 595637, at *1. Here, Fleming has presented sufficient evidence to permit a jury to infer that the condition on the floor of the bakery section of the store was present for a long enough period of time that Pathmark may be charged with constructive notice of it. See Padula v. Big V Supermarkets, Inc., 570 N.Y.S.2d 850, 851 (3d Dep't 1991).
The plaintiff has not included a 56.1 statement with her opposition papers, which would normally deem the facts set forth in the defendant's 56.1 statement admitted. In the interest of justice, however, the Court relies on all evidence the parties have submitted in relation to the present motions. See. e.g., Collings v. Industrial Acoustics Co., Inc., No. 99 Civ. 11875 (GEL), 2001 WL 913909, at *1 n. 2, (S.D.N.Y. Aug. 13, 2001); Shepard v. Frontier Communications Servs., Inc., 92 F. Supp.2d 279, 284 (S.D.N.Y. 2000); Balut v. Loral Elec. Sys., 988 F. Supp. 339, 343-44 (S.D.N.Y. 1997)
CONCLUSION
For the reasons stated, there are material issues of fact which are appropriately reserved for a jury. Accordingly, defendant's motion for summary judgment is denied.