The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiffs commenced the within action seeking against Target Corporation ("Target") seeking monetary damages for pain and suffering and loss of consortium as a result of an accident that occurred on May 24, 2010. Plaintiffs allege that defendant negligently and carelessly maintained a Target store and allowed a dangerous condition to exist resulting in injury to plaintiff, Sherice E. Smith.*fn1 Presently before the Court is defendant's motion summary judgment and dismissal of plaintiffs' complaint pursuant to Fed. R. Civ. P. 56. In the alternative, defendant seeks an order dismissing plaintiff James Smith's second cause of action due to the failure to prosecute pursuant to Rule 41(b) and an order precluding expert testimony pursuant to Local Rule 26.3 and Fed. R. Civ. P. 37(c)(1). (Dkt. No. 20).
The facts in this case, unless otherwise noted, are undisputed. The subject incident occurred on May 24, 2010 at the Target Store located at 428 Balltown Road, Schenectady, New York. At approximately 3:30 - 4:00 p.m, plaintiff, Sherice Smith, arrived alone at the Niskayuna Target. Plaintiff traveled by bus to the store. Plaintiff took a shopping cart and proceeded to shop for groceries and electronics. Plaintiff was in the store for approximately ninety minutes. Plaintiff checked out her items and asked a customer service representative to watch her purchases while she used the restroom. Upon leaving the restroom, she retrieved her purchases and began walking towards the exit doors to leave. Plaintiff was wearing flip-flops and had two plastic bags in her right hand and one plastic bag in her left hand. Plaintiff was also carrying a shoulder bag over her shoulder. Plaintiff described the lighting in the store as "normal". When she arrived at the doors, she realized that she could not exit because she was at the entrance doors. Plaintiff then proceeded towards the exit doors. While walking near the cart corral, plaintiff fell. Plaintiff testified that she was looking straight ahead at the time she fell. She could not recall which part of her body hit the floor first. At her examination before trial, plaintiff testified that she fell on a rug:
Q. Did there come a point where you observed what caused you to fall?
Q. And what observations did you make with respect to the rug?
A. The rug, it was worn. The part that was supposed to secure the rug, it was deteriorated.
A. I don't know how to explain it.
A. This is the rug (indicating). The rug is supposed to be flat down. You know the black tape or whatever they put around it?
A. It was worn. It wasn't no good. I went to walk and I just tripped.
Q. Do you know for sure that's what caused you to trip?
Q. How do you know that's what caused you to trip?
A. Because when I went to step - - I just know. I can't explain it. I don't know.
Q. But you weren't looking down at the time of your fall?
Q. And the actual object that you claim you tripped on was that black area?
After plaintiff fell, she was approached by three Target employees
while she was still on the floor.*fn3 Dileep Rathore,
the Store Manager, prepared a Guest Incident Report.*fn4
Plaintiff identified the report during her deposition and
stated that it accurately and fairly described her incident. The
report indicates the time of the incident at 3:12 p.m. and location as
"front of the check lane, in cartholder area". The section of the form
entitled "Guest Description of the incident, injury and/or damage (in
their own words)" provides: just about to walk out [sic] the store,
she tripped on the seam of the carpet, she injured her knees as she
fell and claims she twist [sic] her back.
The cause of the accident is described as "tripped over a carpet seam" and indicates plaintiff was wearing green flip flops.
Another employee, Senior Team Lead, Stacie Young, also attended to plaintiff. Ms. Young testified that she witnessed plaintiff fall in front of the cart area but that she did not observe what caused plaintiff to fall. After the incident, Ms. Young inspected the carpet and testified that there was a "ripple", that she described as approximately 1/4 inch or lower, in the area where the carpet meets the front entrance carpet. Ms. Young testified that she was unaware of any prior complaints regarding the carpet.
Two days after the accident, plaintiff's husband returned to Target to take photographs with his cell phone.*fn5 Plaintiff is not aware of anyone who may have commented on the condition of the rug or tripped and fell prior to the date of her accident.
Frank Tinnirella, the Niskayuna Target Facilities Manager, testified at an examination before trial on behalf of defendant. Mr. Tinnirella conducts daily inspections of the store every morning prior to 8:00 a.m. and records his inspections. Mr. Tinnirella stated that, "at some time prior" to plaintiff's accident, he noticed a separation of the transition strip between the entrance carpet and the carpet near the cart corral area. Mr. Tinnirella could not recall when he noticed this issue but testified that "it could have been a couple days before [plaintiff's accident] and it could have been as much as a week before". The transition strip is a rubber beveled edge that is vulcanized to the carpet to ease the transition from a hard surface or from one carpet surface to another carpet surface. Mr. Tinnirella repaired the strip with epoxy contact cement and rolled it with a heavy roller. Mr. Tinnirella also put a black, vulcanized sealing strip over the top of the epoxy contact cement. After Mr. Tinnirella put the sealing strip on, he described the difference in elevation at the transition strip between the two carpets as under an eighth of an inch. Mr. Tinnirella is not aware of any prior complaints regarding the carpet or any prior accidents involving the carpet near the cart corral.
On December 2, 2010, defendant removed this matter to federal court. On April 28, 2011, United States Magistrate Judge David R. Home issued a Uniform Pretrial Scheduling Order that provided, inter alia:
1. THE DEADLINES SET IN THIS SCHEDULING ORDER SUPERCEDE THE DEADLINES SET FORTH IN FED. R. CIV. P. 26(a)(3) AND ARE FIRM AND WILL NOT BE EXTENDED, EVEN BY STIPULATION OF THE PARTIES, ABSENT GOOD CAUSE. See Fed. R. Civ. P. 16(b).
All discovery in this matter must be completed on or before November 30, 2011.
Special Procedures for management of expert witnesses: There will be binding disclosure of the identity of expert witnesses (including curriculum vitae) as set forth below.
A. Expert Reports. With regard to experts who are retained or specially employed to provide expert testimony in the case or who duties as an employee of the party regularly involve giving expert testimony:
(1) No later than 90 days prior to the discovery deadline set forth in paragraph 6 above, PLAINTIFF(S) shall identify any expert(s) and, unless waived, shall serve on the other parties the expert's written report pursuant to Fed. R. Civ. P. 26(a)(2)(B).
(2) No later than 45 days prior to the discovery deadline set in paragraph 6 above, DEFENDANT(S) shall identify any expert(s) and, unless waived, shall serve on the other parties the expert's written report pursuant to Fed. R. Civ. P. 26(a)(2)(B).
B. The failure to comply with the deadlines set forth in subparagraph (A) above may result in the imposition of sanctions, including the preclusion of ...