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Ramos v. Sears/Kmart

September 13, 2010


The opinion of the court was delivered by: Debra Freeman, United States Magistrate Judge


In this personal injury case, before me on consent pursuant to 28 U.S.C. § 636(c), plaintiff Gudelia Ramos ("Plaintiff") alleges that she suffered knee injuries when she tripped and fell after her sneaker got caught in the metal grooves of a step on a stationary escalator. Defendant Kmart Corporation, sued herein as Sears/Kmart ("Defendant") has filed two motions that are currently pending before this Court. As a substantive matter, Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that Plaintiff has not established a prima facie case of negligence. Secondarily, pursuant to Rule 30(d) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927, Defendant has moved for sanctions against Plaintiff's counsel for purported misconduct at a deposition. For the reasons set forth below, Defendant's motion for summary judgment (Dkt. 29) is granted, and the motion for sanctions (Dkt. 20) is also granted, but only to the extent that Plaintiff's counsel is directed to pay half of the costs associated with the deposition in question.


A. Factual Background*fn1

On the afternoon of December 26, 2007, Plaintiff arrived at a Kmart store located at 1 Penn Plaza, New York, New York. (See Kmart Corporation's Statement of Facts Pursuant to Rule 56.1, dated Jan. 13, 2010 ("Def. Rule 56.1 Stmt.") (Dkt. 31), ¶ 1; Affirmation of Allison C. Leibowitz, Esq., dated Jan. 13, 2010 ("Leibowitz Aff.") (Dkt. 30), Ex. F (Transcript of the Deposition of Gudelia Ramos, conducted Nov. 3, 2009 ("Ramos Dep.")), at 16.*fn2 ) The Kmart store had three floors, two below ground level, and Plaintiff descended to the lowest floor.*fn3 (See Def. Rule 56.1 Stmt., ¶ 3; see also B. Fintz Aff., ¶¶ 10, 12.)

In order to shop for children's clothing, Plaintiff then proceeded to the escalator that connected the lowest floor to the middle floor. (See Def. Rule 56.1 Stmt., ¶ 4; Ramos Dep., at 28-29.) Before she entered the escalator, she noticed that it was stopped. (See Def. Rule 56.1 Stmt., ¶ 5.) Although there were elevators nearby, Plaintiff chose to walk up the escalator instead, because the elevators were slow and often packed with cartons. (See id., ¶ 7; Ramos Dep., at 34, 36.) She saw a couple of people walking up the escalator in front of her. (See Def. Rule 56.1 Stmt., ¶ 6.) After climbing several steps, Plaintiff testified that she tripped and fell on the third step from the top, having caught her right sneaker on the metal grooves of the step. (See id., ¶ 8 & n.1; Ramos Dep., at 41, 44-46.)

Plaintiff landed on both knees, causing them to become injured and swollen, and her right knee was cut. (See Leibowitz Aff., Ex. D (Plaintiff's Answer to First Set of Interrogatories, dated June 24, 2008), ¶ 4).) Plaintiff testified that she was down for five or 10 minutes before being helped up by a man who walked up the escalator behind her. (See Def. Rule 56.1 Stmt., ¶ 9; Ramos Dep., at 45.) Plaintiff then spoke to an employee of Kmart, who brought her a chair to sit on. (See Def. Rule 56.1 Stmt., ¶ 10.) She asked him to call for an ambulance. (See id.) Plaintiff estimates that she waited almost two hours for the ambulance, during which time she had a view of the subject escalator, but observed no one else fall down. (See id., ¶ 11.) When the ambulance arrived, Plaintiff was transported to Roosevelt Hospital. (See id., ¶ 12.)

The store manager, Charles Moore, testified that, at the time of Plaintiff's accident, Kmart had contracted with a company called "Kone" for maintenance, repair, and upkeep of the escalators. (See id., ¶ 14.) Kmart employees were not responsible for performing maintenance on the escalators, and the decision to shut off any escalator in the Kmart store was made by a representative of Kone. (See id., ¶¶ 14-15.)

B. Procedural History

Plaintiff filed a Summons and Complaint against Kmart Corporation in the Supreme Court of the State of New York, County of New York, on April 24, 2008, alleging negligence. (Leibowitz Aff., Ex. A ("Compl.").) On May 29, 2008, Defendant filed a Notice of Removal to remove the case to this Court. (See Dkt. 1.) This case was referred to me on consent under 28 U.S.C. § 636(c), on October 31, 2008. (See Dkts. 6, 7.)

On November 3, 2009, during the discovery period, Defendant conducted Plaintiff's deposition. (See Ramos Dep.) At that deposition, Plaintiff was represented by Bernard Fintz, Esq. (See id.) Defendant contends that, in general, Mr. Fintz's conduct at the deposition was "irrational, unprofessional, rude, disruptive, and harassing" (Memorandum of Law in Support of Defendant's Motion for Costs and Sanctions, dated Nov. 12, 2009 ("Def. Sanctions Mem."), at 8), and that, more specifically, Mr. Fintz attempted to testify for Plaintiff (see id. at 2-4), made improper objections (see id. at 4-6), and "yelled and pointed" at Defendant's counsel "continuously during the course of the deposition" (see id. at 6-7). Based on this conduct, Defendant filed a motion for sanctions against Mr. Fintz on November 12, 2009. (See Dkts. 20, 21, 22.)

On January 13, 2010, after the close of discovery, Defendant filed a motion for summary judgment, along with supporting documents, including an Attorney's Affirmation, a Statement of Facts submitted pursuant to Local Civil Rule 56.1, and a Memorandum of Law. (See Dkts. 29, 30, 31, 32.) Plaintiff responded by submitting a counsel affirmation incorporating legal arguments. (See Dkts. 43, 44.) On May 11, 2010, Defendant filed a Reply Affirmation and a Reply Memorandum in support of its motion for summary judgment. (See Dkts. 45, 46.)



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