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United States District Court, S.D. New York

January 14, 2004.

YVETTE FIGUEROA, Plaintiff, -against- PATHMARK STORES INC. a/k/a BAY PLAZA PATHMARK #647, Defendant

The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge


Plaintiff, Yvette Figueroa ("Plaintiff"), originally commenced this negligence action against Pathmark Stores, Inc. a/k/a Bay Plaza Pathmark #647 ("Defendant"), in New York State Supreme Court, Bronx County. Defendant removed the action to this Court, pursuant to 28 U.S.C. § 1441, based on this Court's diversity jurisdiction under 28 U.S.C. § 1332.

Defendant has moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, Defendant's motion is denied.*fn1


  On June 16, 2001, Plaintiff was shopping with her friend, Ivelisse Roman ("Roman"), at the Bay Plaza Pathmark store. As Plaintiff approached the cashier aisle she noticed some dry "blackish" footprints, which she had to step over in order to get Page 2 to the cashier. (See Defendant's Affirmation In Support, Ex. B ("PL's Dep.") at 49, 52.) Roman entered the cashier's aisle in front of Plaintiff. (See id. at 65.) After paying the cashier, Plaintiff began to exit the cashier's aisle, making a left towards the exit. (See id.) At that point, Roman, who was pushing a shopping cart, was in front of Plaintiff and had already passed the cashier. (See id.) After turning left and taking a couple of steps, Plaintiff's "right leg began to slip forward, [her] left leg backwards and [her] right arm slapped the floor." (Id. at 66.) Plaintiff alleges that there were grapes and a pink liquid substance "resembling yogurt" spilled on the floor of the supermarket, which caused her to slip and fall. (See id. at 29.)

  Plaintiff does not have personal knowledge of how the grapes or pink liquid substance got on the floor or how long they were there before she fell. (See id. at 29-30.) She first noticed the pink substance and grapes when she looked back at the area after she fell. (See id. at 29.) However, according to Neva Griffin, the Pathmark employee who wrote an incident report concerning Plaintiff's fall, Plaintiff "said a lady in front of her was feeding her child grapes, and the grapes fell on the floor and she slipped on it [sic]." (Defendant's Affirmation In Support, Ex. C ("Griffin Dep.") at 62, 72.) Although Griffin did not observe any grapes or pink liquid on the floor or on Plaintiff's clothing, it is unclear how long after Plaintiff's fall Griffin arrived on the Page 3 scene. (See id. at 73.)

  According to Roman, she was walking in front of Plaintiff when she heard "what sounded like a `gunshot' and heard [Plaintiff] calling [her] name." (Plaintiff's Affirmation In Opposition, Ex. A ("Roman Aff.") ¶ 6.) When she turned around, Roman observed Plaintiff "sitting on the floor in an upright position with her left, leg twisted underneath her and her right leg extended outward." (Id.) Roman observed a pink liquid, which she described as a "drinkable yogurt-type" that was "quite watery," on Plaintiff's pants and shoes, on the floor in the area where Plaintiff fell, as well as on her own shoes. (Id. ¶ 7.) She also noticed some crushed green grapes on Plaintiff's pants. Upon further investigation, Roman observed:

a lot of pink liquid on the floor pooling around the end of the register aisle. [Roman] followed the trail up through the cash register aisle to the area where shoppers wait in line. This area is located just before the aisles begin. As [she] did so, [she] noticed that the liquid had been tracked by others and had already begun to stick to the floor . . . [and] it's pink color had already turned blackish in some places from being tracked by shoes and shopping cart wheels.
(Id. at ¶ 9.) Roman touched the liquid with her fingers, noting that it was sticky. (See id.) According to Roman, after Plaintiff's fall, a manager "immediately" called a maintenance worker, who cleaned up the spill with a mop. (Id. ¶ 8.) Page 4


 I. Summary Judgment Standard

  Summary judgment is appropriate only when 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 judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. In deciding a motion for summary judgment, a court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Cas. Co. of Reading. Pa. v. Nordic Leasing. Inc., 42 F.3d 725, 728 (2d Cir. 1994). Nevertheless, to defeat a motion for summary judgment, a plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). A plaintiff must "come forward with enough evidence to support a jury verdict in [his] favor, and the motion will not be defeated merely . . . on the basis of conjecture and surmise." Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992). A party opposing a motion for summary judgment "may not rest on the pleadings, but must further set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions showing a genuine issue exists for trial." Cifarelli v. Village of Babylon. 93 F.3d 47, 51 (2d Cir. 1996); Fed.R.Civ.P. 56(c) and (e); Celotex Corp. v. Catrett, Page 5 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986). "[I]n order to defeat summary judgment, the nonmoving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor, " and "the non-moving party may not rely on conclusory allegations or unsubstantiated speculation." Byrnie v. Town of Cromwell. Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) (internal quotations omitted).

 II. Negligence Standard

  In order to establish a prima facie case of negligence in a slip-and-fall action, New York law requires that a plaintiff prove that a defendant landowner either created or had actual or constructive notice of a dangerous condition on its property. Taylor v. United States. 121 F.3d 86, 89-90 (2d Cir. 1997) (citing Gordon v. American Museum of Nat. Hist., 67 N.Y.2d 836, 838, 501 N.Y.S.2d 646 (1986)); see also Fleming v. Pathmark Stores, Inc., No. 00 Civ. 8679 (DLC), 2001 WL 987933 at *2 (S.D.N.Y. Aug. 28, 2001); Olesky v. National R.R. Passenger Corp., No. 97 Civ. 3529 (MJL)(KTD), 1999 WL 595637, at *1 (S.D.N.Y. Aug. 5, 1999). "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 discovery and remedy it." Taylor, 121 F.3d at 90 (quoting Gordon, 67 N.Y.2d at 837, 501 N.Y.S.2d at 647); see also Fay v. Bass Hotels and Resorts, Inc. No. 00 Civ. 9107 (MBM), 2003 WL 21738967 at *4 Page 6 (S.D.N.Y. July 28, 2003).

 III. Defendant's Motion

  As an initial matter, Defendant denies the existence of a dangerous condition. Defendant claims that the area where Plaintiff fell "was clean and free of debris," (Defendant's Statement Pursuant to Local Civil Rule 56.1 ("Def. St.") ¶ 12; Griffin Dep. at 73.), and that after Plaintiff fell "there was no pink substance or grapes on [P]laintiff's clothes." (Id. ¶ 13.) Moreover, Defendant argues, Roman safely traversed the area of the alleged spill immediately before Plaintiff fell. However, according to Plaintiff (see Pl.'s Dep. at 29) and Roman (see Roman Aff. ¶ 7), there were both grapes and a pink substance on Plaintiff's clothes and in the area where Plaintiff fell, as well as on Roman's shoes. A question of fact therefore exists that cannot be resolved on a motion for summary judgment.

  Defendant also argues that Plaintiff has failed to offer evidence from which a jury could infer that "Defendant created the offending condition or had actual or constructive notice of it.("Defendant's Memorandum of Law ("Def. Mem.") at 1.) Plaintiff does not contend that Defendant created, or had actual notice of, the spill prior to Plaintiff's fall. However, Plaintiff argues that Roman's affidavit raises an issue of fact as to whether Defendant had constructive notice of the condition, that is whether "it existed `for a sufficient length of time prior to the accident to Page 7 permit defendant's employees to discover and remedy it.'" Jimenez v. KFC of California. No. 02 Civ. 2826 (RCC), 2003 WL 22244673 at *4 (S.D.N.Y. Sept. 30, 2003) (quoting, Gordon. 67 N.Y.2d at 837, 501 N.Y.S.2d at 647).*fn2

  Roman observed footprints and shopping cart tracks on and through the pink liquid on the floor, which left blackish marks. (See Roman Aff. ¶ 9.) She also observed that the liquid had become sticky and changed color and consistency. (See id.) These facts are sufficient to allow a jury to infer that the substance on the floor had been there for a sufficiently long time to permit Defendant to observe and remedy the situation.

  In Zeller v. Pathmark Stores, Inc., No. Civ. 8216 (DLC), 2001 WL 1196196 (S.D.N.Y., Oct. 10, 2001), the plaintiff slipped and fell on slices of deli meat, or cold cuts, which were on a supermarket floor. The court (Cote, J.) noted that, despite the plaintiff's observation that the cold cuts appeared "`dirty, "she"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." Id. at *2. "Furthermore," the court continued, "the telltale signs supporting an inference of a long-standing condition Page 8 are not present here." Id. Although "she noticed that the pieces of meat on the floor were `dirty' [] she did not observe any track marks or that the floor itself was dirty." Id. Accordingly, the court held that a finding that the cold cuts were present "for an appreciable period of time would be mere speculation." Id.; see also Anderson v. Central Tractor Farm & Family Center, Inc., 250 A.D.2d 1023, 1024, 673 N.Y.S.2d 271, 272(3d Dep't 1999)(testimony that a spill was three feet long with twelve to fifteen sets of footprints through it was sufficient to raise a triable issue of fact as to constructive notice); Williams v. Waldbaums Supermarkets. Inc., 236 A.D.2d 605, 606, 653 N.Y.S.2d 962, 963 (2d Dep't 1997) ("[a]bsent any proof that the juice was dirty, or had footprints or wheel marks in it, a jury could not reasonably infer that it had been on the floor for any appreciable length of time to permit: the defendant's employees to discover and remedy it"); Robinson v. Wal-Mart Stores. Inc., 37 F. Supp.2d 605 (W.D.N.Y. 1999) (finding that the fact that a liquid is sticky, without evidence of what the liquid was, does not establish that it was present long enough to constitute constructive notice.)

  In the instant case, although Plaintiff did not see the pink liquid on the floor prior to her fall, and has no knowledge of how long it had been there, there were "telltale signs supporting an inference of a long standing condition." Zeller, 2001 WL 1196196, at *2. Roman claims to have observed a trail of pink liquid Page 9 leading from the front of the store though the checkout area with shopping cart tracks and footprints through it, leading in different directions. (See Roman Aff. ¶¶ 9-10.) Coupled with her observation that the liquid had become sticky and begun to change color and consistency in some places(see id.), a jury could infer that the pink liquid was present for an appreciable period of time. See Catanzaro v. King Kullen Grocery Co., Inc. New York. 194 A.D.2d 584, 584-85 599, N.Y.S.2d 74, 74 (2d Dep't, 1993) (constructive notice found, in part, based on the presence of wet and dry footprints and wheel marks around a spill). Moreover, given the alleged location of the pink liquid, in the high traffic and presumably constantly staffed checkout area, a jury could properly infer that it should not have taken long for Defendant's employees to discover it. See Deluna-Cole, v. Tonali, Inc., 303 A.D.2d 186, 186-87, 754 N.Y.S.2d 643, 644 (1st Dep't 2003) (court found sufficient evidence to create material issue of fact concerning constructive notice where plaintiff, who slipped on a piece of glass located in "a center of activity for restaurant staff," could establish that there was "no breakage or cleanup of glass prior to or during the five to eight minutes it took plaintiff to go to the restroom.").

  It is not the Court's role to weigh credibility on a motion for summary judgment. Plaintiff's deposition testimony, coupled with Roman's affidavit, are sufficient to support the inference Page 10 that the substance on the floor was both visible and apparent. Roman's observations that the liquid was tracked in different directions by shopping carts and shoes, had begun to change color and consistency, and had become sticky in places, are adequate to support an inference that the liquid was present for long enough to permit Defendant's employees to discover and remedy it, particularly in light of its location in the checkout aisle. Accordingly, Plaintiff has presented sufficient evidence to support a reasonable juror's concluding that Defendant had constructive notice of a dangerous condition.


  For the reasons set forth above, Defendant's motion for summary judgment is denied. The parties are to submit a Joint Pre-Trial Order, Proposed Jury Instructions, and Proposed Voir Dire, by February 6, 2004. Upon receipt of the pretrial submissions, a trial date shall be set.


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