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granting summary judgment where employees testified that they never noticed the hazard while using, cleaning, or inspecting the area and plaintiff pointed to no evidence contradicting this testimony
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14-CV-1510 (DF)
01-15-2016
LIDIA VASQUEZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
DEBRA FREEMAN, United States Magistrate Judge :
In this action, before me on consent pursuant to 28 U.S.C. § 636(c), plaintiff Lidia Vasquez ("Plaintiff") brings a negligence claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, to recover for injuries she sustained when she allegedly tripped over a door saddle at the Fort George Station United States Post Office ("Post Office"), located at 4558 Broadway, New York, New York. Currently before the Court is a motion by defendant United States of America ("Defendant") for summary judgment in its favor. (Notice of Motion for Summary Judgment, dated May 28, 2015 ("Def. Mot.") (Dkt. 19).) For the reasons set forth below, Defendant's motion is granted.
BACKGROUND
The facts summarized herein are taken from Defendant's statement pursuant to Local Civil Rule 56.1 (Defendant's Rule 56.1 Statement of Facts, dated May 28, 2015 ("Def. 56.1 Stmt.") (Dkt. 21)), Plaintiff's counterstatement pursuant to Local Rule 56.1 (Plaintiff's Statement Pursuant to Local Rule 56.1, dated July 14, 2015 ("Pl. Counterstatement") (Dkt. 25-6)), and from evidence the parties have submitted in support of their respective motions (see Dkts. 22 and 25, and exhibits attached to each). Unless otherwise noted, citations herein to Defendant's Rule 56.1 Statement, without a cross-reference to Plaintiff's Counterstatement, indicate that the cited factual assertion is not in dispute.
A. Plaintiff's Accident
On April 18, 2012, Plaintiff visited the Post Office. (Def. 56.1 Stmt. ¶ 1.) Plaintiff entered the Post Office from its Broadway entrance, which consists of two sets of double doors, each with a metal door saddle that spans the threshold between the interior vestibule and the exterior landing and rises no more than approximately one-half inch from the ground. (See id. ¶ 2, 5; Pl. Counterstatement ¶ 5.) After conducting business inside the Post Office, Plaintiff exited through the same set of double doors. (Declaration of Rebecca J. Fortney, dated July 14, 2015 ("Fortney Decl.") (Dkt. 25), Ex. 1 (Transcript of the Deposition of Lidia Vasquez, conducted Nov. 13, 2014 ("Pl. Dep.") (Dkt. 25-1), at 24-26).) While crossing the threshold of the doorway, however, Plaintiff tripped on the door saddle and fell forward onto the sidewalk (id., at 24-33), fracturing her ankle and suffering other injuries (id., at 41-52).
Defendant states that the saddle "rises no more than [one-half] inch from the ground" (Def. 56.1 Stmt. ¶ 5), and, although Plaintiff disputes this factual assertion to the extent that it is "characterized as a precise and conclusive measurement" (Pl. Counterstatement ¶ 5), Plaintiff does not appear to dispute that Defendant's statement is at least approximately correct.
See also Declaration of Arastu K. Chaudhury, dated May 28, 2015 ("Chaudhury Decl.") (Dkt. 22), Ex. A (Pl. Dep.) (Dkt. 22-1 to 22-3).
Although, at her deposition, Plaintiff plainly testified that she fell because of the door saddle, Plaintiff's testimony is somewhat vague as to how, specifically, the door saddle caused her to trip. According to Plaintiff, she was wearing flat, low shoes, with a small opening near her big toe (id., at 31-33), and she first testified that she fell after the lip of her shoe became stuck "in" the door saddle (id., at 26). Plaintiff did not describe the shoes she was wearing in any further detail - for instance, the record gives no indication as to the thickness of their soles - and she could not remember whether she still owned them. (Id., at 33.) Later, when Defendant's counsel asked Plaintiff if she remembered on what, exactly, her foot became stuck, she answered, "On the piece of metal that's there, yes," while pointing to the door saddle in a photograph. (Id., at 28-29.) Then, when counsel asked whether it was correct that Plaintiff's foot was caught "under that piece of metal," Plaintiff answered, "Yes, sir." (Id., at 29.) Finally, in response to further questioning, Plaintiff testified that the lip of her shoe became "stuck in the metal strip." (Id., at 33.) Given that Plaintiff variously described her shoe as becoming caught "in," "on," or "under" the door saddle (id. at 26-27, 29, 31-33), her deposition testimony does not make clear exactly how or why the door saddle caused her to fall. Certainly, the record could be read to suggest that the lip of Plaintiff's shoe became caught in a gap between the door saddle and the ground, but portions of Plaintiff's testimony could also be read to suggest that her shoe became stuck on the raised metal strip itself, causing her to stumble.
Plaintiff testified through the use of an interpreter, and her seemingly inconsistent use of prepositions may reflect a translation or comprehension issue. In any case, as set forth below, the exact cause of Plaintiff's fall is not determinative of this motion for summary judgment.
B. Practices of Defendant's Employees
The record contains deposition testimony from two of Defendant's employees, Charles Johnson ("Johnson"), who was employed at the Post Office as a custodian at the time of Plaintiff's injury (Chaudhury Decl., Ex. B (Transcript of the Deposition of Charles Johnson, conducted Dec. 15, 2014 ("Johnson Dep.") (Dkt. 22-4 to 22-8)), and Olga Rosario ("Rosario"), who was a general clerk and safety specialist at the Post Office on that date (Chaudhury Decl., Ex. C (Transcript of the Deposition of Olga Rosario, conducted Dec. 15, 2014 ("Rosario Dep.") (Dkt. 22-9)).
See also Fortney Decl., Ex. 2 (Johnson Dep.) (Dkt. 25-2).
See also Fortney Decl., Ex. 3 (Rosario Dep.) (Dkt. 25-3).
Johnson testified that, during the period of time leading up to Plaintiff's accident, his duties were to maintain the cleanliness of the facility and to report any property damage or unsafe condition to his supervisor. (Johnson Dep., at 6-8.) As part of these duties, Johnson would clean the vestibule and doorway area at the Post Office's Broadway entrance about once a day. (Id., at 27.) Johnson was also responsible for ensuring that the Broadway entrance was locked at the close of business each day, which he accomplished by inserting a set of pins that were attached to the door and fit into the door saddle. (Id., at 20-23.) After setting the pins in place, Johnson would "rock" and "shake" the door to "physically check" that the door was secured. (Id., at 20-21.) These activities required Johnson to handle, touch, and step on the door saddle, but he never noticed that the saddle was loose or that there was a gap between the saddle and the ground. (Id., at 18-20, 23, 28, 34.) Johnson also assisted Rosario in performing quarterly safety inspections, during which the entrances of the Post Office were checked for hazards. (Rosario Dep., at 17.) Both Johnson and Rosario stated that, during these inspections, they never noticed any dangerous or defective condition relating to the door saddle. (Id., at 41-44, 47-48; Johnson Dep., at 33-34.) Rosario also testified, however, that the door saddle was not "on the list" of items to be checked, and that she therefore did not specifically examine the saddle during safety inspections. (Rosario Dep., at 41-44.)
The doorway to the Broadway entrance, including the saddle, was replaced in 2010, and, from that time until the date that Plaintiff was injured, there were no other repairs or changes affecting the door saddle. (Def. 56.1 Stmt. ¶ 8.) There were no accidents or complaints regarding the saddle prior to Plaintiff's accident, on April 18, 2012. (Def. 56.1 Stmt. ¶ 11.)
C. Procedural History
On March 5, 2014, Plaintiff initiated this action by filing a Complaint. (Verified Complaint, dated Feb. 19, 2014 (Dkt. 2).) In the Complaint, Plaintiff brings a claim under the FTCA, alleging that she was injured as a result of Defendant's negligence. (Id.) Defendant filed an Answer to the Complaint on May 21, 2014. (Answer, dated May 21, 2014 (Dkt. 6).)
On May 28, 2015, Defendant filed its motion for summary judgment and memorandum of law (Defendant's Memorandum of Law in Support of its Motion for Summary Judgment, dated May 28, 2015 ("Def. Mem.") (Dkt. 20)), arguing that the record produced in discovery is devoid of any evidence showing that a dangerous or defective condition caused Plaintiff's injuries. (Id., at 5-6.) Defendant further argues that, if such a condition did exist, the facts adduced in discovery do not show that Defendant either created the condition or had actual or constructive notice of it. (Id., at 6.) In support of its motion, Defendants also filed a Local Rule 56.1 Statement (Def. 56.1 Stmt.), and an attorney declaration (Chaudhury Decl.) with attached exhibits, including photographs of the Broadway entrance of the Post Office (id., Ex. D), and excerpts from the transcripts of the depositions of Plaintiff (Pl. Dep.), Johnson (id., Ex. B (Johnson Dep.)), and Rosario (id., Ex. C (Rosario Dep.)).
On July 15, 2015, Plaintiff filed a memorandum of law in opposition to Defendant's summary judgment motion, contending that there is an issue of fact as to whether Defendant created a dangerous or defective condition, that Defendant has failed to demonstrate as a matter of law that it did not have constructive notice of the dangerous and defective condition, and that any issue as to the proximate cause of Plaintiff's fall must be decided by the trier of fact. (Memorandum of Law in Support of Plaintiff's Affirmation in Opposition to Defendant's Motion for Summary Judgment, dated July 14, 2015 ("Pl. Mem.") (Dkt. 25-5).) Plaintiff also submitted a Counterstatement to Defendant's Local Rule 56.1 Statement (Pl. Counterstatement)), and an attorney declaration (Fortney Decl.) with attached exhibits, including excerpts from the transcripts of the depositions of Plaintiff (id., Ex. 1 (Pl. Dep.)), Johnson (id., Ex. 2 (Johnson Dep.)), and Rosario (id., Ex. 3 (Rosario Dep.)), and photographs of the Broadway entrance that are identical to those submitted by Defendant (id., Ex. 4).
The photographs submitted by the parties do not reveal a gap or any other defect; Plaintiff argues that any such observation is precluded because the photographs "depict[] a bird's-eye view of the door saddle with a rubber mat directly abutting the side of the saddle." (Pl. Mem., at 10.) --------
Defendant filed a reply memorandum of law on July 28, 2015. (Defendant's Reply Memorandum of Law in Support of its Motion for Summary Judgment, dated July 28, 2015 ("Def. Reply") (Dkt. 26).)
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Rule 56 of the Federal Rules of Civil Procedure
Under Rule 56(c), a motion for summary judgment should be granted "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." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The moving party bears the burden of showing that no genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). This burden may be satisfied "by pointing out the absence of evidence to support the non-movant's claims." Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991) (citing Celotex, 477 U.S. at 325).
Once the movant meets this burden, the non-moving party "must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex, 477 U.S. at 322-23). Specifically, the non-moving party must cite to "particular parts of materials in the record" or show "that the materials cited [by the movant] do not establish the absence . . . of a genuine dispute" as to any material fact. Fed. R. Civ. P. 56(c)(1). The party opposing summary judgment "may not rely on conclusory allegations or unsubstantiated speculation," Scott v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)), as "unsupported allegations do not create a material issue of fact," Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted). Rather, a plaintiff opposing summary judgment "must lay bare his proof in evidentiary form and raise an issue of fact sufficient to send to the jury." Weiss v. La Suisse, Societe D'Assurances Sur La Vie, 293 F. Supp. 2d 397, 408 (S.D.N.Y. 2003) (internal quotation marks and citations omitted); see Smith v. Menifee, No. 00cv2521 (DC), 2002 WL 461514, at *3 (S.D.N.Y. Mar. 25, 2002) (holding that the non-moving party must present "significant probative evidence tending to support the complaint" (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968))).
In reviewing the evidentiary record, the court "must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001). If, even viewed in this light, there is not "sufficient evidence favoring the non[-]moving party for a jury to return a verdict for that party," or if the "evidence is not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
B. Local Civil Rule 56.1
Under this Court's rules, a party moving for summary judgment under Rule 56 must submit "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civ. R. 56.1(a). "The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing the district courts from the need to hunt through voluminous records without guidance from the parties." Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001). Local Rule 56.1, however, does not relieve the party seeking summary judgment of the burden of establishing that it is entitled to judgment as a matter of law. Id. Thus, the Court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement; it also must be satisfied that the moving party's assertions are supported by the record. See Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Zerafa v. Montefiore Hosp. Hous. Co., 403 F. Supp. 2d 320, 329 n.12 (S.D.N.Y. 2005).
C. Negligence Claim Under the FTCA
In a case brought pursuant to the FTCA, substantive liability is determined by reference to "the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Courts must therefore consult state substantive law to determine whether the United States is liable under the FTCA for the torts of its employees. See Liranzo v. United States, 690 F.3d 78, 86 (2d Cir. 2012); see also FDIC v. Meyer, 510 U.S. 471, 478 (1994) ("[The] law of the State [is] the source of substantive liability under the FTCA."). On the other hand, the procedural aspects of an action brought under the FTCA are governed by federal law. See Zeak v. United States, No. 11-CV-4253 (KPF), 2014 WL 5324319, at *8 (S.D.N.Y. Oct. 20, 2014); Hughes v. United States, No. 12-CV-5109 (CM), 2014 WL 929837, at *4 (S.D.N.Y. Mar. 7, 2014).
As Defendant's allegedly negligent acts occurred in New York, Plaintiff's substantive claim is governed by New York law. In New York, the elements of a negligence claim are: (1) a duty owed to the plaintiff by the defendant, (2) breach of that duty, and (3) injury substantially caused by that breach. See Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002). Specifically, to recover for her injuries in a "slip-and-fall" case, a plaintiff must demonstrate: (1) "the existence of a dangerous or defective condition," and (2) "that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time." See Winder v. Exec. Cleaning Servs., LLC, 936 N.Y.S.2d 687, 687 (2d Dep't 2012); see also Feis v. United States, 394 F. App'x 797, 798 (2d Cir. 2010) ("To make out a prima facie case of negligence in a slip and fall case under New York law, a plaintiff must demonstrate that defendant had knowledge of the alleged dangerous condition, either actual or constructive, or that it caused the condition to be created by its own affirmative act." (internal quotation marks and citation omitted)).
In the summary judgment context, the New York state courts apply a different burden of proof in a slip-and-fall case than that imposed by the Federal Rules of Civil Procedure. Under New York law, "[a] defendant who moves for summary judgment in a [sl]ip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it." Levine v. Amverserve Ass'n, Inc., 938 N.Y.S.2d 593, 593 (2d Dep't 2012) (quoting Arzola v. Boston Props. Ltd. P'ship, 880 N.Y.S.2d 352, 352 (2009)). As the allocation of the burden of proof at the summary judgment stage is a matter of procedural law, however, this burden does not apply in an FTCA action brought in federal court. See Zeak, 2014 WL 5324319, at *8 ("Although New York law governs the substantive claims, federal law governs the burdens that the parties must meet at the summary judgment stage."); Tingling v. Great Atl. & Pac. Tea Co., No. 02-CV-4196 (NRB), 2003 WL 22973452, at *2 (S.D.N.Y. Dec. 17, 2003) ("We find that the issue of what burden a movant for summary judgment bears when the ultimate burden of proof lies with the non-movant is procedural rather than substantive, . . . and accordingly is subject to federal rather than state law.").
Accordingly, Defendant need not make any affirmative prima facie showing on this motion for summary judgment, and may discharge its burden of proof merely "by pointing to an absence of evidence to support an essential element of [Plaintiff's] claim." Zeak, 2014 WL 5324319, at *8; see also Feis, 394 F. App'x at 798-99 (holding that, in slip-and-fall case governed by New York law, defendant "was not required to affirmatively disprove each element of plaintiff's claim," but could satisfy burden of proof by pointing to lack of evidence on an essential element); Hughes, 2014 WL 929837, at *4 ("Even though the substantive claims are governed under New York law, the procedural issues are determined under the federal standard. Therefore, 'the burden on the moving party may be discharged by "showing" - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case.'" (quoting Celotex, 477 U.S. at 325)).
II. PLAINTIFF'S CLAIM
As noted above, Defendant moves for summary judgment on the basis that the evidentiary record is devoid of any affirmative proof demonstrating either that a dangerous condition or defect actually existed, or that such a condition was created by or known to Defendant. (See generally Def. Mem.) In her opposition materials, Plaintiff consistently misapprehends the burden of proof applicable to Defendant's motion for summary judgment, erroneously arguing that Defendant's evidence on each element is insufficient to make the prima facie showing required under the New York procedural law. (See Pl. Mem., at 8-10 (stating that Defendant has initial burden on issue of whether it created the allegedly dangerous condition and arguing that Defendant has not affirmatively shown that it did not do so); id., at 10-12 (stating that Defendant has initial burden on issue of whether it had constructive notice of the allegedly dangerous condition and arguing that Defendant's evidence is insufficient to discharge this burden).) Defendant, for its part, correctly points to an absence of evidence supporting Plaintiff's assertions that a dangerous condition or defect actually existed or that any such condition was created by Defendant. Defendant also offers uncontroverted deposition testimony from Johnson and Rosario to refute Plaintiff's allegation that Defendant had constructive notice that the door saddle constituted a tripping hazard. For these reasons, as discussed more fully below, Defendant is entitled to summary judgment.
A. Existence of a Dangerous Condition or Defect
Defendant argues that summary judgment is appropriate because Plaintiff fails to identify any specific condition or defect that caused her to fall. (Def. Mem., at 5-6; Def. Reply at 2-3.) As the Court agrees that Plaintiff has not produced any evidence, other than her own speculative testimony, tending to show that the door saddle was dangerous or defective, Defendant is entitled to summary judgment on this basis alone.
To establish the existence of a dangerous condition or defect, a plaintiff must be able to point to a specific condition that caused her injury. See Siegel v. City of New York, 928 N.Y.S.2d 1, 3 (1st Dep't 2011). The mere fact that the plaintiff tripped and fell over an object that was under the control of the defendant does not satisfy this requirement. See Boyko v. Sam's Club-Members Only, 975 F. Supp. 488, 490 (W.D.N.Y. 1997). Indeed, this type of "simplistic deduction of cause from effect fails to show a defect, much less fault." Pena v. Women's Outreach Network, Inc., 824 N.Y.S.2d 3, 8 (1st Dep't 2006). For that reason, a plaintiff cannot establish liability on a slip-and-fall claim if she is unable to identify the dangerous condition or defect that caused her injury, without resorting to speculation. See Williams v. Vines, 10 N.Y.S.3d311, 311-12 (2d Dep't 2015).
Here, while Plaintiff clearly testified that she tripped over the door saddle (Pl. Dep., at 26, 29), she did not specifically identify how or why that piece of metal caused her to fall. For instance, Plaintiff's deposition testimony gives no information at all about the state of the saddle, such as whether it was loose, damaged, improperly designed, or otherwise dangerous or defective. In her opposition materials, however, Plaintiff implicitly argues that, because her shoe became caught "in" or "under" the saddle as she passed through the doorway (id.), there must have been a gap between the door saddle and the ground, and it must have been that gap that caused her to fall. Plaintiff contends that the evidence presented by Defendant in support of its contention that no such gap exists, including the deposition testimony of Johnson and Rosario, "is unfounded and should be disregarded by the Court." (Pl. Mem., at 9.) Plaintiff further argues that, because the proof cited by Defendant fails "to substantiate its claim that there was no gap between the door saddle and the ground," the evidentiary record is "insufficient, as a matter of law, to eliminate questions of fact as to whether a gap existed between the door saddle and the ground at the time of [Plaintiff's] accident." (Id.) This argument, however, misstates the burden of proof on a summary judgment motion filed pursuant to Rule 56. As set forth above, Defendant is not required to provide affirmative evidence substantiating its position that the door saddle did not constitute a dangerous condition or defect; instead, as the burden of proof at trial would fall on Plaintiff, Defendant need only show that Plaintiff lacks evidence sufficient to establish this element. See Feis, 394 F. App'x at 798-99.
Defendant has met this burden. The only evidence that Plaintiff points to in support of her contention that a dangerous condition or defect caused her injuries is her own deposition testimony that, as she summarizes it in her papers, "she was caused to trip and fall when the lip of her open-toed shoe got stuck in the door saddle at the Broadway exit of the [Post Office]." (Pl. Mem., at 9.) As stated above, however, the "mere fact" that the door saddle caused Plaintiff to trip does not establish the existence of a dangerous condition or defect. See Pena, 824 N.Y.S.2d at 8 (holding that fact that plaintiff's shoe became stuck in step did not show that stairway was in dangerous or defective condition). It is entirely possible that the door saddle caused Plaintiff to fall, despite the fact that it was not in any way damaged or defective.
Further, even if the Court were to find that Plaintiff's deposition testimony regarding her shoe getting caught in the door saddle raises a genuine issue of fact as to whether a gap between the saddle and the ground existed, Plaintiff cites no evidence suggesting that such a gap constituted a dangerous condition or defect. For instance, Plaintiff points to no evidence regarding the nature and size of this gap, and she offers no expert affidavit, city building code, or other method of proof suggesting that a gap of that size makes a door saddle dangerous, defective, or unlawful. See Ayala v. Gutin, 853 N.Y.S.2d 665, 666 (2008) ("[A] property owner may not be held liable for trivial defects, not constituting a trap or a nuisance, over which a person might merely stumble, stub his or her toes, or trip."); Bullock v. Anthony Equities, Ltd., 786 N.Y.S.2d 144, 144-45 (1st Dep't 2004) (finding that, where the defendant's expert affidavit established that a door saddle was not defective and that hazard posed by a three-quarter inch height differential between the edge of the saddle and the floor was trivial, plaintiff's expert affidavit failed to raise a triable issue of fact, as it was couched in general terms and offered unsubstantiated conclusions about the tripping hazard posed by the saddle). Thus, even assuming that a gap between the door saddle and the ground was the cause of Plaintiff's fall, the absence of further evidence showing that a gap of this nature and size constitutes a dangerous condition or defect means that Plaintiff cannot establish this essential element without resorting to speculation and conjecture.
The Court therefore concludes that there is no genuine issue of material fact as to this element of Plaintiff's claim. See Witkowski v. Island Trees Pub. Library, 4 N.Y.S.3d 65, 67 (2d Dep't 2015) ("[S]ummary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous."); Puma v. N.Y. City Transit Auth., 865 N.Y.S.2d 630, 631 (2d Dep't 2008) (same). In any event, regardless of whether Plaintiff has shown the existence of a genuine disputed issue as to this element of her claim, she has not shown the need for a trial in this action, as she has not come forward with any evidence to support the remainder of the elements that she would be required to prove.
B. Creation of a Dangerous Condition or Defect
In its memorandum of law, Defendant does not specifically address whether it created a hazard, instead arguing that the record contains no evidence of a defective condition and that, even if such a condition did exist, Defendant had no notice of it. (Def. Mem. 5-6.) In her opposition, again misapprehending the burden of proof on this motion for summary judgment, Plaintiff asserts that "Defendant failed to provide any evidence that Mr. Johnson's nightly practice of rocking and shaking the doors at the Broadway exit while they were closed and with the door pins pulled down and into the door saddle did not create a dangerous tripping hazard by raising the door saddle above the ground." (Pl. Mem., at 9.) In its reply, Defendant states that it is under no obligation to offer evidence tending to disprove Plaintiff's prima facie case, and it maintains that Plaintiff can point to no affirmative evidence suggesting that Johnson's actions created any dangerous condition or defect. (Def. Reply at 5.)
To establish that a defendant created a dangerous condition or defect, a plaintiff must point to "some affirmative act" on the part of the defendant. See Feder v. Target Stores, 15 F. Supp. 3d 253, 256 (E.D.N.Y. 2014); Gonzalez v. Wal-Mart Stores, Inc., 299 F. Supp. 2d 188, 192 (S.D.N.Y. 2004). Circumstantial evidence on this point may be sufficient to defeat a motion for summary judgment, if it supports the inference that the defendant created the danger through its own affirmative acts. Id. On the other hand, "[a] plaintiff cannot avoid summary judgment through mere speculation and conjecture regarding how a defendant may have created a particular hazard." Cousin v. White Castle Sys., Inc., No. 06-CV-6335 (JMA), 2009 WL 1955555, at *6 (E.D.N.Y. July 6, 2009); see also Feder, 15 F. Supp. 3d at 256 ("Though a plaintiff cannot avoid summary judgment on this issue through mere speculation and conjecture, circumstantial evidence may be sufficient if it supports an inference of causation or negligence.").
Here, Plaintiff's suggestion that Johnson must have caused the saddle to become raised above the ground, through his practice of shaking the doors to check whether they were locked, is insufficient to raise a genuine issue of fact. Where a plaintiff merely speculates that a defendant's actions caused or worsened a dangerous condition, without providing any evidence specifically linking those actions to the hazard's creation, summary judgment is appropriate. See Cunningham v. Bay Shore Middle Sch., 865 N.Y.S.2d 691, 692 (2d Dep't 2008) (holding that plaintiff's speculation that defendant's employees caused wet condition by mopping a floor did not create an issue of fact); Krichevskaya v. City of New York, 817 N.Y.S.2d 103, 105 (2d Dep't 2006) ("In opposition, the plaintiffs merely speculated that [the defendant] created the icy condition by negligently shoveling the sidewalk. Such speculation was insufficient to raise a triable issue of fact to defeat the motion."); Baia v. Allright Parking Buffalo, Inc., 811 N.Y.S.2d 843, 844 (4th Dep't 2006) ("[Plaintiff's contention] that defendant's snow removal efforts either created a hazardous condition or worsened the conditions then existing is based on mere speculation and thus is insufficient to raise an issue of fact."). As Plaintiff cannot point to any evidence suggesting that Johnson's practice of shaking the doors did, or even could have, caused the door saddle to become loose, the Court finds that there is no genuine issue of fact as to whether Johnson's actions created a hazardous condition.
C. Actual or Constructive Notice of Dangerous Condition or Defect
Defendant also maintains that the evidence of record cannot support a finding that Defendant had actual or constructive notice that the door saddle was dangerous or defective. (Def. Mem., at 6.) Plaintiff does not suggest that Defendant had actual notice of any hazard associated with the door saddle, and, indeed, the record contains no hint that anyone, prior to Plaintiff's accident, had tripped or made any complaint to Defendant about the door saddle's condition. Plaintiff argues, however, that Defendant must be deemed to have had constructive notice because it has failed to meet its supposed initial burden to demonstrate when the area in question was last cleaned or inspected relative to the time when Plaintiff fell. (Id., at 10-11.) In its reply memorandum, Defendant contends that Johnson's uncontroverted testimony shows that its employees were not aware of the existence of any defect. (Def. Reply, at 6.)
On this point, as with her other arguments, Plaintiff misstates the burden of proof on this motion for summary judgment, erroneously arguing that Defendant's proffered evidence is insufficient to make a prima facie showing that it did not have constructive notice of the alleged hazard. (See Pl. Mem., at 10-11 (arguing that, under New York law, a defendant cannot meet its initial burden on summary judgment by referring to general cleaning practices, but must offer specific proof regarding its inspection or cleaning of the area in which the plaintiff fell on the date of the accident); see also Pl. Counterstatement ¶ 6 ("There are issues of fact concerning the sufficiency of the inspections conducted by Mr. Johnson and Ms. Rosario and, therefore, whether they would have revealed the presence of a dangerous and defective door saddle.")) In fact, Defendant need not offer any evidence showing that its cleaning and inspection practices would have revealed the existence of a dangerous condition, but must only demonstrate that Plaintiff lacks affirmative proof sufficient to establish a genuine issue of fact with respect to the element of notice.
To establish constructive notice, a plaintiff must show that the condition was visible and apparent and existed for a sufficient length of time prior to the accident to allow the defendant to discover and remedy it. Gonzalez, 299 F. Supp. 2d at 192-93 (citing Gordon v. Am. Museum of Nat. History, 67 N.Y.2d 836, 837 (1986)). In this case, no dangerous condition or defect is apparent in the photographs submitted by the parties, and both Johnson and Rosario testified that they never noticed any such hazard while using, cleaning, or inspecting the Broadway entrance. (Johnson Dep., at 19-20, 23, 33-34; Rosario Dep., at 42-44, 46-48.) Plaintiff points to no evidence contradicting this testimony or otherwise demonstrating that the allegedly dangerous condition was visible or apparent. Further, Plaintiff has submitted no evidence showing that the door saddle was in a defective or hazardous condition for any length of time prior to her accident. For these reasons, Defendant is entitled to summary judgment on the issue of whether it had notice of a dangerous condition or defect.
CONCLUSION
For all of the foregoing reasons, Defendant's motion for summary judgment (Dkt. 19) is granted. The Clerk of Court is respectfully directed to enter judgment in favor of Defendant, dismissing, with prejudice, Plaintiff's claim against it, and to close this case on the Court's Docket. Dated: New York, New York
January 15, 2016
SO ORDERED
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies to: All counsel (via ECF)