The opinion of the court was delivered by: William M. Skretny United States District Judge
1. On December 22, 2003, Defendant Wal-Mart Stores, Inc., removed this personal injury action to this Court from the New York State Supreme Court. Plaintiff Tracy Polvino alleges that she was injured as a result of Defendant's negligence when she slipped and fell on a clothing hanger that was on the floor of Defendant's store. Presently at bar is Defendant's Motion for Summary Judgment, which was filed on December 22, 2005. After full briefing, this Court took the motion under advisement on April 6, 2006, without oral argument. For the following reasons, Defendant's motion is granted.
2. On August 25, 2001, Plaintiff and her boyfriend (now husband) Thomas Polvino were shopping at the Thruway Plaza Wal-Mart store in Cheektowaga, New York. Plaintiff, who was pregnant at the time, alleges that as she walked from the carpeted ladies' clothing department into the linoleum-covered main aisle of the store, she slipped on a plastic clothing hanger and fell to her buttocks. Plaintiff refused medical treatment offered by Wal-Mart personnel, but subsequently went to the emergency room on the advice of her doctor. Plaintiff's pregnancy was unaffected by the fall, but she contends that she was otherwise injured as a result of Defendant's negligence.
3. Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where 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 judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.
4. On motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.In a case where the non-moving party bears the ultimate burden of proof at trial, the movant may prevail on its summary judgment motion by pointing to the absence of competent evidence supporting an essential element of the non-moving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.3d 265 (1986).
5. To establish a case of negligence under New York law, the plaintiff must prove: (1) that the defendant owed a duty of care; (2) that the defendant breached that duty; and (3) that the breach proximately caused the plaintiff to suffer damages. Di Benedetto v. Pan Am World Service, Inc., 359 F.3d 627, 630 (2d Cir. 2004); Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985). In a premises liability case such as this, the plaintiff must present evidence that the defendant created, or had actual or constructive notice of, the dangerous condition. Gordon v. Am. Museum of Natural History, 492 N.E.2d 774, 67 N.Y.2d 836, 837 (1986); Ohlsson v. JBC Bowl Corp., No. 99-CV-890E(F), 2001 WL 1117162, at *4 (W.D.N.Y. Sep. 14, 2001). Moreover, where actual or constructive notice is alleged, liability cannot be imposed unless a plaintiff also can show that the defendant had a reasonable opportunity to correct the dangerous condition. Putnam v. Stout, 38 N.Y.2d 607, 612 (1976).
6. Defendant argues that it is entitled to summary judgment because Plaintiff has not come forward with sufficient evidence to establish negligence. In particular, Defendant argues that there is insufficient evidence that it created or had actual or constructive notice of the dangerous condition. Plaintiff contends that the evidence is sufficient for a jury to find in her favor.
7. A defendant has actual notice of a defect if it created the defect or gained actual knowledge of the defect's existence. Ducrepin v. United States, 964 F.Supp. 659, 664 (E.D.N.Y. 1997) (citingMcHale v. Westcott, 893 F.Supp. 143, 148-49 (N.D.N.Y.1995)). Plaintiff has not come forward with any direct evidence that Defendant caused the hanger to be on the floor or had actual notice of it. There is no evidence in the record relating to whom or what caused the hanger to be on the floor, or how long the hanger was there. (Donohue Aff., Exhibit A, pp. 30-31*fn1 ). Plaintiff did not see the hanger before she fell, nor did her husband. (Donohue Aff., Exhibit A, p. 29; Donohue Aff., Exhibit C., p. 15.*fn2
Furthermore, there is no evidence that anyone reported the existence of the hanger on the floor to Defendant or any of Defendant's employees.
8. In the absence of direct evidence, Plaintiff relies on circumstantial evidence. Plaintiff and her husband testified in their depositions that they saw two Wal-Mart employees in the vicinity of the accident hanging clothing on sales racks (Donohue Aff., Exhibit A, p. 31-32; Donohue Aff., Exhibit AA, pp. 64-69*fn3 ; Donohue Aff., Exhibit C., p. 23.*fn4 ). Plaintiff cannot identify these individuals beyond approximate height and weight, nor is there any evidence that these two individuals dropped the hanger on the floor. (Donohue Aff. Exhibit AA, p. 65.) In any event, the mere presence of these two individuals in the vicinity of the accident area, even if proven,*fn5 is insufficient to support the inference that they created the dangerous situation. See Russell v. Meat Farms, Inc., 554 N.Y.S.2d 709, 710 (N.Y. App. Div. 1990) ("we find that the placement of the defendant's employee in the vicinity of the accident, without more, does not establish facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred" (quotation and citations omitted)); Benware v. Big V Supermarkets, Inc., 576 N.Y.S.2d 461, 462-63 (N.Y. App. Div. 1991) (existence of three of the defendant's employees working in vicinity of accident area was insufficient to raise a triable issue of fact regarding whether the defendant created the dangerous condition or had notice of it). Accordingly, this Court finds that Plaintiff cannot establish that Defendant created the dangerous condition or had actual notice of it.
9. "A defendant has constructive notice of a defect if the defect is 'visible and apparent' and 'in existence for a sufficient period of time before the accident so that the defendant could discover and remedy it.'" McHale, 893 F.Supp. at 148-49(quoting Hammond-Warner v. United States, 797 F.Supp. at 211). Again, this Court finds that there is a failure of proof. The record is devoid of any evidence that Defendant had constructive knowledge of the dangerous condition. Plaintiff's own testimony reveals that the hanger was not "visible and apparent" since she testified that she did not see the hanger because it was clear plastic and was "not noticeable." (Donohue, Exhibit A, p. 29.)
10. Moreover, there is no evidence concerning how long the hanger was on the floor. Plaintiff is thus unable to establish that the dangerous condition was in existence for a sufficient length of time such that Defendant could discover and remedy it. See Russell, 554 N.Y.S.2d at 710 ("in the absence of some evidence that the condition existed for a sufficient period to afford the defendant, in the exercise of reasonable care, an opportunity to discover and correct it, there was no factual issue for the jury") (quotation and citations omitted); see also Torri v. Big V of Kingston, Inc., 537 N.Y.S.2d 629, 631 (N.Y. App. Div. 1989) ("In the absence of any proof of how long the substance was there prior to plaintiff's fall, she may not rely on a theory of constructive notice.")
11. Finally, Plaintiff relies on a "recurrent condition" theory to attempt to establish constructive notice. This theory requires "evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed by the landlord." Uhlich v. Canada Dry Bottling Co. of N.Y., 758 N.Y.S.2d 650, 651 (N.Y. App. Div. 2003) (quotation and citations omitted). However, proceeding by this theory does not relieve the plaintiff of the requirement to come forth with specific evidence that the defendant had constructive knowledge of the dangerous condition that caused the plaintiff's injury. See Gordon, 67 N.Y.2d at 838 (holding that neither a general awareness that a dangerous condition may be present, nor the existence of similar dangerous conditions being observed just 10 minutes prior is legally sufficient to charge the defendant with constructive knowledge of the specific dangerous condition that allegedly caused the accident); see also Chianese v. Meier, 774 N.E.2d 722, 726, 98 N.Y.2d 270, 278 (2002) (characterizing Gordon as holding "that general awareness of a dangerous condition cannot create an inference of constructive notice of the particular condition that caused the plaintiff's injury").
12. Plaintiff has submitted several affidavits from individuals who attest that the existence of hangers on the floor in Defendant's store was common. For example, several former Wal-Mart employees submitted affidavits indicating that they frequently saw debris, including hangers, in the aisles of the store, and the store was generally messy. (Donohue Aff., Exhibits D, E. F, G, H.) Only one employee however, Dameka R. Torbert, was present in the store on the day of Plaintiff's accident. (Donohue Aff., Exhibit F.*fn6 She states that "there were hangars [sic] on the floor all the time and nobody would pick them up . . . ." ...