The opinion of the court was delivered by: Gerard E. Lynch, District Judge
While shopping at the Wal-Mart in Fishkill, plaintiff Paulette DeLotch slipped on a peeled banana and fell. DeLotch sued defendant Wal-Mart Stores, Inc., ("Wal-Mart") in Bronx County, and Wal-Mart removed the case to this Court. After a rocky period of discovery (see Order of February 20, 2008; Order of March 4, 2008), Wal-Mart now moves for summary judgment, which will be granted.
On August 10, 2008, DeLotch and her sisters were shopping at Wal-Mart together. One of DeLotch's sisters, walking in front of DeLotch, slipped on the banana, but caught her balance.
(D. Rule 56.1 Stmt. ¶ 3, citing Deposition of Paulette DeLotch, dated November 13, 2007, 48-49; accord P. Rule 56.1 Stmt. ¶ 3.) DeLotch saw her sister slide. (D. Rule 56.1 Stmt. ¶ 3, citing DeLotch Dep. 48-49; accord P. Rule 56.1 Stmt. ¶ 3.) Almost simultaneously, DeLotch slipped on the same banana and fell. (D. Rule 56.1 Stmt. ¶ 3, citing DeLotch Dep. 49; accord P. Rule 56.1 Stmt. ¶ 3.) No one was able to describe the condition of the banana prior to the fall. After the fall, though, DeLotch and her sisters examined the area where she fell. DeLotch described the substance on which she fell as "brownish," "maybe more of a dark brown," and determined that she stepped on a banana based on the substance's smell. (D. Rule 56.1 Stmt. ¶ 3, citing DeLotch Dep. 53-55; accord P. Rule 56.1 Stmt. ¶ 3.) One of DeLotch's sisters described the substance as "a light-ish color brown, mushy, dark." (D. Rule 56.1 Stmt. ¶ 5, citing Deposition of Julia Gomez, dated November 13, 2007, 27; accord P. Rule 56.1 Stmt. ¶ 5.) Another described it as "gray/brown/yellow, but brownish gray." (D. Rule 56.1 Stmt. ¶ 8, citing Deposition of Christine Alado, dated November 13, 2007, 29; accord P. Rule 56.1 Stmt. ¶ 8.) DeLotch also testified that she slipped on a peeled banana, as she was unable to find a peel in the vicinity of the fall. (D. Rule 56.1 Stmt. ¶ 3; accord P. Rule 56.1 Stmt. ¶ 3; Alado Dep. 30.)
DeLotch points to no evidence in the record supporting the conclusion that Wal-Mart or any of its agents placed the banana on the floor, or had actual notice of the banana on the floor before the accident. She relies on circumstantial inferences to argue that defendant had constructive notice of the condition.
Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial burden of explaining the basis for its motion and identifying those portions of the record which it believes "demonstrate the absence of a genuine issue of material fact." Id. at 323. The burden then shifts to the non-movant to produce evidence sufficient to create a genuine issue of material fact for trial. Fed. R. Civ. P. 56(e)(2) (When a summary judgment motion is "properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in [Rule 56] -- set out specific facts showing a genuine issue for trial."); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) ("When the moving party has carried its burden under [Rule 56], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." (citations omitted)).
The Court's responsibility is to determine if there is a genuine issue to be tried, and not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all reasonable inferences and resolve all ambiguities in the non-movant's favor, and construe the facts in the light most favorable to the non-movant. Id. at 255 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." (citation omitted)). However, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient" to withstand a motion for summary judgment. Id. at 252.
A non-movant's unsupported denials of the movant's evidence, without more, cannot create disputes of material fact. See Fed. R. Civ. P. 56(e)(2). Affidavits must be supported by personal knowledge. Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 n.5 (2d Cir. 1998). Likewise, "conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion." Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002) (citations omitted); see also id. ("The nonmoving party must go beyond the pleadings and by [his or] her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." (alterations in original) (citation and internal quotation marks omitted)).
B. Property Owners' Duties to Invitees
Under clearly established New York law, which governs this dispute, a plaintiff may establish a prima facie case of negligence in a tort action such as this by demonstrating that the defendant (1) created the offending condition or (2) had actual or constructive notice of the condition in advance of the accident. See Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 (1986); Lewis v. Metro. Transp. Auth., 427 N.Y.S.2d 368, 371 (1st Dep't 1984). "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 discover and remedy it." Gordon, 67 N.Y.2d at 837 (citations omitted). If, for example, the banana had been on the floor for a substantial period of time without being removed, and DeLotch thereafter slipped on it, then Wal-Mart would have had "constructive notice" of the banana, and would be liable to her for ...