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January 5, 2004.

LUZ MARIA GONZALEZ, Plaintiff, -against- WAL-MART STORES, INC. and SAM'S CLUB, Defendants/Third-Party Plaintiffs, — against — MID WESTCHESTER LAWN SERVICE, Third-Party Defendant

The opinion of the court was delivered by: JOHN KOELTL, District Judge


The plaintiff, Luz Maria Gonzalez, brought this action in the New York State Supreme Court, New York County, against Wal-Mart Stores and Sam's Club (collectively, "Sam's Club"), alleging that the defendants' negligence caused Gonzalez to slip, fall, and injure herself in the parking lot of a Sam's Club store in Elmsford, New York on May 29, 1999. The defendants removed the action to this Court pursuant to 28 U.S.C. § 1441 and 1446, and jurisdiction is based on diversity pursuant to 28 U.S.C. § 1332. Following removal to this Court, the defendants, as third-party plaintiffs, filed a complaint pursuant to Federal Rule of Civil Procedure 14 against third-party Page 2 defendant Mid Westchester Lawn Service ("Mid Westchester") seeking contribution or indemnity.*fn1 Both Sam's Club and Mid Westchester have moved, pursuant to Federal Rule of Civil Procedure 56, for summary judgment on the claims made against each of them.


  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The Page 3 moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which 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 (1986).

  In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on Page 4 conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).


  Unless otherwise noted, the following facts are not in dispute. The plaintiff is a resident of Westchester County, New York. (Verified Compl. ¶ 1.) Wal-Mart Stores, Inc., doing business as Sam's Club, is a Delaware corporation with its principal place of business in Arkansas. (Def.'s Not. of Removal.) Mid Westchester is the "doing business" name for a sole proprietorship of a New York resident. (Third-Party Compl. ¶ 5; Third-Party Answer ¶¶ 1-6; Transcript of Deposition of Edward Kardian dated Sept. 12, 2002 ("Kardian Dep.") attached as Ex. K to Defs.' Not. of Mot. ("Defs.' Mot."), at 4-5.)

  The plaintiff alleges that on May 29, 1999 she visited a Sam's Club store in Elmsford, New York. (Verified Compl. ¶¶ 25, 28.) She further alleges that while she was walking in the Sam's Club parking lot, she was caused to trip and fall when her feet became tangled in an approximately two-feet long strip of white plastic rope that: was lying on the pavement. (Id. ¶ 28; Transcript of Deposition of Luz Maria Gonzalez dated July 16, Page 5 2001 ("Gonzalez Dep.") attached as Ex. G to Defs.' Mot., at 14-15; Transcript of Deposition of Eugolia Ramiro Grullon dated Sept. 12, 2002 ("Grullon Dep.") attached as Ex. I to Defs.' Mot., at 20-23.) The accident allegedly occurred at approximately 11:30 in the morning on a Saturday, and the plaintiff was accompanied by her husband and her daughter. (Defs.' Rule 56.1 St. ¶ 2; Gonzalez Dep. at 8, 22.) The plaintiff maintains that she did not see the rope before she tripped on it, but her testimony on the issue was ambiguous. (Defs.' Rule 56.1 So. ¶ 2; Pl.'s Resp. Rule 56.1 St. ¶ 5; Gonzalez Dep. at 16-17.) She does not know how long the rope had been on the pavement before she fell, but she stated that similar ropes were "always . . . on the ground" in the Sam's Club parking lot. (Defs.' Rule 56.1 St. ¶ 3; Gonzalez Dep. at 16-19, 22.) When shown a picture of rope allegedly similar to that involved in the accident, Eddie Gavida, an employee of Sam's Club, stated: "It looks like T.V. or computer — they come attached with the plastic — you have the monitor and the computer. They come attached and you have this plastic ropes around it so a lot of time people cut them because they don't fit in cars . . . To me this looks like a thin rope. . . . This looks like it's a thin plastic that T.V.'s have around them." Page 6 (Transcript of Deposition of Eddie Gavida dated Sept. 12, 2002 ("Gavida Dep.") attached as Ex. J to Defs.' Mot., at 23-24.)

  The plaintiff stated that she did not make any complaints to Sam's Club about conditions in the parking lot prior to the accident, and that she is unaware of anyone else who made any such complaints. (Defs.' Rule 56.1 St. ¶ 3; Gonzalez Dep. at 19.) Neither the plaintiff nor anyone on her behalf reported her accident to Sam's Club after the accident occurred. (Gonzalez Dep. at 48-49; Grullon Dep. at 25.)

  Gavida testified that, in May 1999, Sam's Club employed a "front-end manager," whose responsibilities included removing boxes and other debris from the area in front of the store, including the parking lot. (Defs.' Rule 56.1 St. ¶ 5; Pl.'s Resp. Rule 56.1 St. ¶ 4; Gavida Dep. at 9-10.) Gavida stated that Sam's Club also employed "parking lot partners," who cleaned up debris in the parking lot whenever they saw it, although there was no set schedule for such cleaning during the day. (Defs.' Rule 56.1 St. ¶ 5; Pl.'s Resp. Rule 56.1 St. ¶ 4; Gavida Dep. at 11-12, 16.) Gavida testified that the Sam's Club parking lot contained about three garbage cans per aisle of parked cars. (Defs.' Rule 56.1 St. ¶ 6; Pl.'s Resp, Rule 56.1 St. ¶ 4; Gavida Dep. at 19.) Sam's Club submitted further evidence documenting its regular policies concerning maintenance Page 7 and cleaning of store premises, including the parking lot. (Affidavit of Alvin Bowen dated June 4, 2003 attached as Ex. Q to Defs.' Mot.)

  Sam's Club contracted with Mid Westchester to empty the garbage cans and clean the debris in the parking lot on a daily basis, (Gavida Dep. at 16-17; Kardian Dep. at 6-7.) Mid Westchester would clean the parking lot everyday beginning at around 6:00 a.m., and the job would take between an hour and an hour and a half. (Gavida Dep. at 16-17; Kardian Dep. at 7.) Edward Kardian, the owner of Mid Westchester, stated that: he and his crew would go to the Sam's Club parking lot every morning and "take a pickup truck which is left there, drive around and pick up any remaining boxes, garbage. They would pick up papers, . . . cigarette butts, basically cleaning down to everything making it spotless." (Kardian Dep. at 7.) Kardian stated that the parking lot was generally dirtier on Saturday and Sunday than on other days of the week. (Kardian Dep. at 13.) Prior to May 1999, Mid Westchester had never received any complaints concerning rope or other debris in the Sam's Club parking lot. (Kardian Dep. at 10.)

  Maria Ferreras, a friend of the plaintiff and a former employee of the Sam's Club in Elmsford, New York, testified that when the plaintiff described the rope that caused the accident Page 8 Ferreras recognized it as the type of plastic used to tie boxes and that "it was always in the parking lot." (Transcript of Deposition of Maria Ferreras dated Nov. 7, 2002 ("Ferreras Dep.") attached as Ex. L to Defs.' Mot., at 20; Defs.' Rule 56.1 St. ¶ 11; Pl.'s Resp. Rule 56.1 St. ¶ 2.) Ferreras worked at the Elmsford, New York Sam's Club for approximately two years, and she last worked there in 1995. (Id. at 6-7; Defs.' Rule 56.1 St. ¶ 10; Pl.'s Resp. Rule 56.1 St. ¶ 2.) Ferreras stated that when she worked at Sam's Club she would routinely see in the parking lot rope similar to that allegedly involved in the plaintiff's accident. (Ferreras Dep. at 24.) Ferreras stated that since 1995 when she stopped working at the Sam's Club, she would shop there perhaps once a month, and maybe more times around the holidays. (Ferreras Dep. at 11.) She could not remember whether she went to the Sam's Club at any point in the first six months of 1999. (Defs.' Rule 56.1 St. ¶ 10; Ferreras Dep. at. 13-14.)


  Sam's Club now moves for summary judgment on the grounds that it had neither actual nor constructive notice of the dangerous condition that allegedly caused the plaintiff's injury. Mid Westchester also moves for summary judgment Page ...

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