The opinion of the court was delivered by: Azrack, United States Magistrate Judge
In this personal injury action, plaintiff Mona Cousin ("Cousin" or "plaintiff") alleges that defendant White Castle System, Inc. ("WCS" or "defendant") is liable for injuries she sustained after she slipped and fell in a puddle of water and soda on the floor of defendant's fast food restaurant. The parties have consented to my jurisdiction for all purposes. (Dkt. No. 22.) Now before the Court is defendant's motion for summary judgment on the grounds that plaintiff cannot establish that defendant created or had notice of a hazard or that the puddle, if it existed, caused her to fall. Defendant further argues that in light of surveillance video that contradicts plaintiff's account, the Court should reject her testimony as "incredible as a matter of law." For the reasons discussed below, defendant's motion for summary judgment is granted.
A. The Testimonial Evidence
On February 3, 2006, plaintiff and her cousin Harold Williams ("Williams") drove to defendant's White Castle fast food restaurant located at 900 Pennsylvania Avenue in Brooklyn, New York ("White Castle" or "restaurant"). (Cousin Dep. at 16:5--18; 19:2--20:21; Lewis Dep. at 8:10--15; Williams Dep. at 10:6--8.) They entered the restaurant through the rear door and walked toward the counter to place an order. (Cousin Dep. at 21:20--25.) As they made their way to the counter, they passed through the restaurant's self-service beverage area, which consisted of a soda machine and a coffee machine situated directly opposite each other. (Id. at 23:20--24:19; Lewis Dep. at 12:11--22; Ex. O.)*fn1 Plaintiff did not notice any liquid on the floor while walking to the counter. (Id. at 40:24--41:5; 34:25--35:3.) However, as she passed through the beverage station, she felt something sticky under her feet and saw a "stain" on the floor "[l]ike something fell there and dry [sic] or something like that." (Id. at 41:4--21.) Plaintiff walked over this sticky stain without incident and did not report it to any White Castle employees. (Id. at 41:22--42:14.) Williams did not notice any puddles or debris on the floor as he walked into the store. (Williams Dep. at 26:10--13.)
After walking up to the counter and waiting on line for a few minutes, plaintiff placed a "to go" order for hamburgers and sodas. (Cousin Dep. at 22:6--23:8.) Approximately twenty minutes later, she and Williams received their food. (Cousin Dep. at 22:6--23:15; 26:15--27:3.) The hamburgers were in one bag and the sodas were in cups placed in a separate bag. (Id.) According to plaintiff, the cups were already filled with soda when the employee handed them to her. (Id. at 23:3--8.) According to defendant, all beverage service in the restaurant at the time of his incident was self-service such that if a customer ordered a beverage, she would be handed an empty cup from behind the counter and directed to fill it herself at the self-service beverage station. (Lewis Dep. at 12:23--13:18.)
After receiving their order, plaintiff and Williams started to exit the restaurant. Williams carried the sodas and plaintiff carried the hamburgers. Williams walked ahead of plaintiff and exited the restaurant without incident. (Id. at 27:13--16.) He did not notice any spills on the floor either while waiting in the restaurant or on his way out. (Williams Dep. at 26:14--21.) Plaintiff, however, was less fortunate. She testified at her deposition that as she reached the area between the coffee and soda machines, where she had previously seen the sticky stain, her right foot slipped forward and she fell backwards onto the floor. (Cousin Dep. at 27:6--29:24; 80:16-- 81:6.) She twisted her right knee, hit her head against the tiled floor, and immediately felt pain in her knee, back, and head. (Id. at 27:6--29:24; 37:24--38:12.). Plaintiff did not notice any hazards on the floor prior to her fall. However, after an unidentified male in an apron, whom she believes was a White Castle employee, helped her up, she noticed that the back of her pants were wet and she saw a puddle of water and soda on the floor where she had fallen (Cousin Dep. at 30:3--31:14; 33:23--34:24.)
Plaintiff further testified that immediately after her fall, while still on the floor, she saw, for the first time, a yellow caution sign leaning against the wall to her left somewhere in between the counter and the rear door. (Id. at 35:4--10.) She could not recall if there was any liquid near the sign. (Id. at 35:22--24.) Williams testified that he had seen a "folded up" yellow caution sign and a slop bucket near the rear door both as he entered and exited the restaurant. (Williams Dep. at 17:21--18:15.) Williams did not see anyone working with the bucket at any time. (Id. at 18:16--18.) Neither plaintiff nor Williams saw anyone mopping at any point during the incident. (Id. at 18:16--18; Cousin Dep. at 36:21--24.) Neither reported the incident, the puddle, or any other hazards to any WCS employees at any point before or after the fall. (Id. at 37:13--20.)
Jacqueline Graham, the White Castle shift manager on duty at the time of the incident, also testified that neither she nor any other employees received any reports of spills or puddles or that a customer had fallen in the restaurant. (Graham Dep. at 18:22--19:16; Lewis Dep. at 39:8-- 40:19; 46:8--47:25.)
Plaintiff asserts that she twisted her knee during the fall and sustained pain and injuries to her knee, back, and neck. (Cousin Dep. at 27:6--29:24; 38:12.) After she returned home, she called an ambulance and was admitted to the hospital for overnight observation. (Id. at 48:15-- 53:19.) Neither party submitted plaintiff's medical records and the record does not indicate what diagnosis or treatment she received at the hospital. However, plaintiff testified that she received physical therapy, pain injections, and knee surgery over the next year. (Id. at 57:2--67:23.)
B. The Surveillance Video
Neither plaintiff nor defendant identified any other witnesses to plaintiff's fall. However, the incident was captured by White Castle's video surveillance system. (Ex. M) The surveillance video submitted by defendant includes three different camera views depicting three different areas of the restaurant. Not all portions of the restaurant are visible. The video is grainy and out of focus and it is difficult to make out details. Moreover, the video is not a continuous recording but rather a frame-by-frame depiction akin to a series of photographs displayed in rapid succession. Thus, any activity that may have occurred between frames does not appear to have been recorded. Nevertheless, the three cameras together captured most of plaintiff's activity within the restaurant.
The video shows plaintiff and Williams arriving at the White Castle at approximately 10:00 p.m. (Ex. M; Def'd 56.1 at ¶ 23; Pl. Opposition Br. at ¶ 5.) Plaintiff can be seen entering the restaurant alone through the rear door, which is around a corner and several yards away from the beverage station, while Williams remains in the car. A yellow caution sign that appears to be only partially erect or leaning against the wall is on the floor next to the door. After entering, plaintiff makes her way through the restaurant, walks past the beverage station and arrives at the counter without incident. She waits on line and then appears to place an order. She then walks away from the counter with an indiscernible white object in each hand. She stops briefly at a table in between the counter and beverage station and then makes three trips back-and-forth between a table and the self-service soda machine. It is unclear if she actually uses the machine, however, she stands before it for several seconds on each trip. She does not slip, stumble, or fall at any point during any of these trips to the soda machine. At some point after plaintiff places her order, Williams enters the restaurant and joins her. A few minutes later, plaintiff receives at least two, possibly more, bags from behind the counter. She gives one bag to Williams and they start to walk out with plaintiff in the lead.
On her way out, plaintiff passes by the soda machine again without incident. However, as she reaches the door, she appears to stumble or fall down just as she attempts to pull open the door. She drops out of the camera's view for a brief moment and then reappears as she regains her stance with the assistance of an unidentified male who is wearing jeans and appears to be a customer. Williams can be seen walking out with plaintiff and appears to have been present during the fall. Both plaintiff and Williams exit the ...