The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are (A) defendant's motion for summary judgment (Docket No. 45*fn1 ) and (B) plaintiff's cross-motion for summary judgment and to strike (pursuant to Federal Rules of Civil Procedure 11, 26, 37, and 56) (Docket No. 49*fn2 ). The parties consented to proceed before the undersigned on May 19, 2005 (Docket No. 7).
This is a removed diversity personal injury action (plaintiff is a New York resident, defendant a Pennsylvania retailer) arising from plaintiff's fall in the elevator of defendant's Eastern Hills Mall store on April 24, 2003 (see Docket No. 1, Notice of Removal, Ex., state court Complaint; see Docket No. 46, Def. Statement ¶ 1, Ex. A, Compl. ¶ 7). Plaintiff alleged that she was caused to fall in the store's elevator sustaining various injuries due to defendant's negligence, carelessness and recklessness (see Docket No. 46, Def. Statement ¶ 2, Ex. A, Compl. ¶¶ 10-11). Plaintiff claims that the store's escalator was broken and she was directed to use the freight elevator to return to the first floor (Docket No. 49, Pl. Atty. Aff. ¶ 19; id., Pl. Statement ¶¶ 4, 5). Plaintiff, an 80-year-old woman carrying two large packages, was not offered any type of assistance and she fell upon exiting the freight elevator because it was not level with the floor (Docket No. 49, Pl. Atty. Aff. ¶ 19, summarizing plaintiff's deposition testimony; id., Pl. Statement ¶¶ 6-7). This freight elevator did not have an operator (see Docket No. 49, Pl. Atty. Aff. ¶¶ 9, 20).
Plaintiff commenced this action in New York State Supreme Court on or about November 5, 2004 (Docket No. 45, Def. Atty. Aff. ¶ 5; Docket No. 46, Def. Statement Ex. A, Compl.), and defendant answered on or about December 17, 2004 (Docket No. 45, Def. Atty. Aff. ¶ 6, Ex. A). Defendant then removed this action, on March 15, 2005, to this Court (Docket No. 1). Under the latest Amended Scheduling Order (Docket No. 34), discovery was completed by May 22, 2006.
Defendant's Summary Judgment Motion
Following discovery motions (Docket Nos. 18, 25; see Docket Nos. 23, 34, 39*fn3 (Orders on motions)) and referral to alternative dispute resolution mediation (Docket Nos. 24, 27, 38, 34, 35, 40, 48), defendant makes this timely motion (see Docket No. 34, dispositive motions due by August 1, 2006). Defendant argues here that (under New York law) plaintiff cannot establish the existence of a defect to make defendant as landowner liable for plaintiff's injuries and plaintiff cannot establish that defendant had notice of any defective condition (Docket No. 45, Def. Memo. of Law at 1-5).
Defendant cites to plaintiff's own deposition (Docket No. 45, Def. Atty. Aff. ¶ 10, Ex. B), the depositions of defendant's representatives (the general manager of the Eastern Hills Mall store, the receiving manager, and a store employee) (id. ¶¶ 11-13, Exs. C-E), and the sworn maintenance records for the elevator in question (id. ¶ 14, Ex. F). Defendant argues that there was no evidence of a defective condition in the elevator not coming level or any actual or constructive knowledge by defendant of any defect to that elevator (Docket No. 45, Def. Memo. at 2, 4). Defendant had an exclusive maintenance contract with non-party Schindler Elevator Corporation for that elevator and defendant had no notice of the alleged defect (id. at 4-5).
In response to defendant's motion, plaintiff cross-moved for summary judgment and to strike defendant's defenses due to it furnishing false expert disclosure (see Docket No. 49, Pl. Memo. of Law at 4-5). She first argues that she is entitled to judgment as a matter of law due to the proof of defendant's negligence in allowing her to enter a freight elevator and defendant had constructive notice of the defects in that elevator (id. at 1-3). She contends that defendant had actual and constructive notice that it was directing customers to a non-passenger freight elevator, with prior notice of customers getting stuck on that elevator and being "scared" (Docket No. 49, Pl. Atty. Aff. ¶¶ 8, 10 (customers did not like manual operation of elevator and requested assistance or calling for assistance for customers with large packages), 25).
She claims that defendant submitted a false expert disclosure about Richard McLean, defendant's purported expert who stated that he evaluated the elevator at issue when, in fact, he had not and was not retained by defendant as an expert (Docket No. 49, Pl. Atty. Aff. ¶¶ 13-15, 22, Exs. G, H). McLean testified in his deposition that the elevator was not for customer's use (id. Pl. Atty. Aff. ¶ 15, Ex. H, McLean EBT Tr. at 12, 16, 17-18, 26). Plaintiff's expert, a former modernization manager for Otis Elevator, states that the elevator in question violated industry standards and should not have been used for public passengers (id. Pl. Atty. Aff. ¶ 16, Ex. I, Aff. of Frank Pasztor ¶¶ 1, 3, 4) and that if the elevator was not leveled a tripping hazard would occur (id. Ex. I, Aff. ¶ 6). Plaintiff seeks sanctions under Rule 26(g) for defendant's false certification of its expert (id. ¶ 23).
Finally, under New York law, plaintiff contends that defendant cannot meet the Rule 56 standard for summary judgment by not showing the lack of a triable issue of fact (Docket No. 49, Pl. Memo. at 5-8).
Defendant contends that the photographs and medical treatise cited by plaintiff were not authenticated and thus cannot be used to support her motion (Docket No. 51, Def.'s Atty. Aff. in Opp. ¶¶ 4-6; Docket No. 51, Def. Memo. at 2), Fed. R. Civ. P. 56(e). Defendant argues that plaintiff fails to show evidence of any defect or that defendant had any notice of a defect, despite violating industry standards in the signage for the ...