Opinion
00 civ. 8216 (DLC)
October 10, 2001
Mitchell D. Kessler, New York, NY, For Plaintiff.
Richard S. Geffen, Henry M. Primavera, Kral, Clerkin, Redmond, Ryan, Perry Girvan, Mineola, NY, For Defendants.
OPINION AND ORDER
This is a diversity action arising out of an accident in which Sally H. Zeller ("Zeller") fell in the front aisle 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 granted.
BACKGROUND
The following facts are undisputed. On October 15, 1999, plaintiff Zeller was working as a product demonstrator for R.E.H. Marketing Co. ("REH"), and was assigned to the Pathmark store located in the Bay Plaza Shopping Center in the Bronx, New York. At approximately 3:20 p.m., Zeller walked from her station at the rear of the store near the deli towards the front of the store in order to obtain a plastic shopping bag from a cashier. While en route to the front of the store, Zeller slipped and fell on "cold cuts" that "looked like ham" on the floor in the front aisle.
Before she fell, Zeller did not hear any announcements over the public address system. Zeller states that she did not see the ham on the floor before she fell, but that after she had been helped to her feet by two nearby customers, she saw that there were "maybe two" or "three" slices of deli meat on the floor, not packaged or rolled up, but "loose." Following the fall, Zeller did not observe whether the floor was dirty, but she did state that the pieces of meat on the floor were "dirty." She did not look for footprints on the ham, nor did she see any track marks.
In a supplemental affidavit, Zeller states that the pieces of deli meat which caused her to fall were in "half-moon" shapes, or were essentially pieces of deli meat cut in half. Zeller further states that "it was very apparent" to her that the pieces of meat she saw on the floor were "sample" pieces, which had been offered by the Pathmark deli department. It was the policy of Pathmark to offer free samples of deli meats and cheeses to customers. Zeller was assigned to the Bay Plaza Pathmark in her capacity as a product demonstrator for REH "usually every week" or "every other week," on the weekends. Based upon the time she has spent in this Pathmark store, Zeller states that she often saw parents giving the deli samples to their children, and that "many times" she has seen the deli samples "end up on the floor in the past."
The defendant argues that the supplemental affidavit submitted by the plaintiff attempts to create a "sham issue of fact" in contradiction to her deposition testimony. See Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). The supplemental affidavit in this case, however, did not alter Zeller's prior testimony "in material respects." Id. Rather, Zeller's supplemental affidavit expands upon her deposition testimony with regard to the appearance of the deli meat on the floor of the store.
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 zview 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.
To establish negligence, Zeller must prove, among other things, either that Pathmark created the 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, 89-90 (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) No evidence has been presented that Pathmark or its agents had actual knowledge of the condition that caused Zeller's fall. A general policy of handing out samples of deli meats to customers does not establish that Pathmark created the condition that caused the plaintiff's injury. See Quarles v. Columbia Sussex Corp., 997 F. Supp. 327, 330-31 (E.D.N.Y. 1998).
While the parties have not addressed the choice of law, 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, Zeller must prove that the defect was "`visible and apparent'" and that it existed "`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, 67 N.Y.2d 836, 837 (N.Y. 1986)); see also Olesky, 1999 WL 595637, at *1. Zeller has not presented sufficient evidence that would permit a jury to infer that the cold cuts on the floor were present for a long enough period of time that Pathmark may be charged with constructive notice of them. Zeller did not see the cold cuts on the floor prior to her fall and has no knowledge of how long they had been on the floor prior to the accident. Furthermore, the telltale signs supporting an inference of a long-standing condition are not present here. Zeller has testified that, after the fall, she noticed that the pieces of meat on the floor were "dirty," but that she did not observe any track marks or that the floor itself was dirty. Because the dirty appearance of the cold cuts may have been caused by Zeller's fall, any finding that they had been on the floor for an appreciable period of time would be mere speculation. See Cobb v. Indus Limited Partnership, No. 98 Civ. 3549 (JG), 1999 WL 115441, at *3 (E.D.N.Y. 1999); Strowman v. Great Atlantic And Pacific Tea Company, Inc., 675 N.Y.S.2d 82, 83 (1st Dep't 1998); Koser v. Supermarkets General Corp., 663 N.Y.S.2d 888, 889 (2d Dep't 1997); Cuddy v. Waldbaum, 646 N.Y.S.2d 51, 52 (2d Dep't 1996)
Zeller also maintains that deli meat on the floor of the Pathmark store was a recurrent dangerous condition, placing Pathmark on constructive notice. New York law provides that "when a landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific reoccurrence of that condition." Weisenthal v. Pickman, 545 N.Y.S.2d 369, 371 (2d Dep't 1989) (citations omitted). Zeller has testified that "many times" she has seen deli samples "end up on the floor in the past." This conclusory testimony is insufficient to create an issue of fact regarding the existence of a recurring condition. Although circumstantial evidence can establish both "actual knowledge" of the tendency of this activity to occur, and that the condition was "routinely left unaddressed," to do so the evidence must be "specific" and "nonconclusory." Lowe v. Spada, 722 N.Y.S.2d 820, 822 (3d Dep't 2001) (supervisor of maintenance company provided evidence of chronic condition, including receipt of daily complaints); see also Suarez v. DC Management Assoc., Inc., 726 N.Y.S.2d 763, 764 (3d Dep't 2001); Smith v. Funnel Equities, Inc., 723 N.Y.S.2d 194, 195 (2d Dep't 2001).
Zeller relies on Goldblatt v. Fairway Supermarket, 701 N.Y.S.2d 45, 45 (1st Dep't 2000), in which the First Department held that plaintiff's testimony that she was a frequent customer and routinely noticed food and paper waste on the floor and puddles of moisture from coffee and water spills near the coffee urns was sufficient to establish actual or constructive notice of the defective condition which caused plaintiff's fall. Id. While the discussion in Goldblatt suggests that there may be some tension between its holding and the more recent authority cited above, its discussion is too limited to draw a firm conclusion on this score. In any event, the requirement in Lowe that evidence of a recurring condition be specific and nonconclusory is not unique, and its corollary can be found in many areas of the law. Any other rule would allow a party to proceed to trial without giving its adversary a fair opportunity to defend, and would be an invitation to perjury.
CONCLUSION
The defendant's motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendant and close the case.
SO ORDERED.