United States District Court, E.D. New York
YURIY Y. SHIMUNOV, Plaintiff,
HOME DEPOT U.S.A, INC., Defendant.
MEMORANDUM & ORDER
KIYO A. MATSUMOTO, District Judge.
Plaintiff Yuriy Y. Shimunov commenced this action against defendant Home Depot U.S.A, Inc. by filing a Summons and Complaint dated December 20, 2010, in the Supreme Court of New York, Queens County. (Complaint.) Plaintiff alleges that he slipped and fell on an escalator at the Home Depot store at 92-30 168th Street in Queens, New York, on March 19, 2010, because defendant "negligently and carelessly maintained said premises in such a haphazard, negligent manner as to cause" injury to him, which resulted in "grievous physical pain and mental anguish." ( Id. ¶¶ 6, 12, 15.)
Defendant removed this case on October 21, 2011, under 28 U.S.C. § 1446, alleging diversity jurisdiction. (ECF No. 1, Notice of Removal, 10/21/11.) Defendant's fully briefed motion for summary judgment is now pending before this court. (ECF No. 22, Motion for Summary Judgment, 6/20/13.) For the reasons set forth below, defendant's motion for summary judgment is granted.
The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving plaintiff. Because plaintiff admits to nearly all of the facts proffered by defendant in defendant's Rule 56.1 Statement of Undisputed Material Facts, the court will only cite to defendant's statement to the extent that both parties agree with defendant's proffered fact.
Plaintiff drove to the Home Depot store at 92-30 168th Street in Queens on March 19, 2010, to shop for "some home needed stuff, " although he no longer remember exactly what he was planning to purchase or precisely when he arrived at the store. (Defendant's Rule 56.1 Statement of Undisputed Material Facts ("Def.'s 56.1 Stmt."), 4/29/13, ¶¶ 1, 14, 17, 19.) Plaintiff testified that he shopped at this Home Depot "all the time" because it was close to his house. ( Id. ¶ 6.)
After arriving at the store, plaintiff parked his car in an upstairs parking lot and used an elevator to enter the main area of the store. ( Id. ¶ 19.) Plaintiff did not recall how long he spent shopping in the store, if he entered any aisle other the aisle with screws and hardware, or if he purchased any items, but he stated in his affidavit that he was not carrying any items when he left. ( Id. ¶¶ 19-21, 23; Affidavit of Plaintiff ("Pl.'s Aff."), 6/3/13, ¶ 9.)
The Home Depot store had one escalator going up and one escalator going down. (Def.'s 56.1 Stmt. ¶ 24.) To leave the store, plaintiff took the escalator going up so he could retrieve his car from the parking lot. ( Id. ¶ 25.) Plaintiff had walked between two and five steps on the moving escalator going up and was looking up at the exit when he slipped and fell down. ( Id. ¶¶ 25, 37.)
Plaintiff testified that a step on the escalator was "slippery, it was oily, " but that he did not see any oily substance on the step until after he had fallen. ( Id. ¶¶ 27, 42.) Plaintiff further testified that the substance was "oil[;] [it] was... like black, it was dark, " but he did not recall if more than one step was slippery or oily, did not see or recall any puddle of oil on the escalator, and did not remember if the oily substance coated the entire tread of the step. ( Id. ¶¶ 28, 31-32, 40.) Plaintiff was not aware of any problems with the escalator before the accident. ( Id. ¶ 41.) No one else was on the escalator, and no one saw plaintiff fall. ( Id. ¶¶ 35-36.)
Plaintiff cut his finger after falling, and he returned to the store and eventually spoke to Nafiza Alli-Singh, the manager on duty at the Home Depot that day. ( Id. ¶¶ 43-44, 50.) Plaintiff told Singh "the escalator, I just falled [sic], " but he did not show her where he fell and left the store without filling out an incident report. ( Id. ¶¶ 44-46.) Plaintiff testified that he told Singh he had slipped on "something" on the escalator and that Singh cleaned his oily hands and gave him a bandage. (Plaintiff's Rule 56.1 Statement of Undisputed Material Facts ("Pl.'s 56.1 Stmt."), 6/3/13, ¶ 44.) In his affidavit, plaintiff averred that he slipped and fell on the escalator but did not specify that he told Singh he slipped and fell on an oily substance on the escalator. (Pl.'s Aff. ¶¶ 19-20.)
Defendant, however, asserts that plaintiff did not show the oily substance to any Home Depot employee or tell any Home Depot employee about the oily substance. (Def.'s 56.1 Stmt. ¶¶ 44, 47.) For the purposes of this motion, the court will accept that plaintiff did in fact tell Singh that he slipped on "something" and that she cleaned an oily substance off of his hands. The court further notes that these facts are immaterial to its decision.
As part of her responsibilities, Singh regularly ensured that there were no hazardous conditions by walking through the store every hour and riding up and down the escalators. ( Id. ¶ 51.) Home Depot trains associates to recognize hazardous conditions in its stores, instructs them to contact appropriate personnel to remedy any hazardous conditions, and requires hourly "walking the store inspections, " including inspections of the escalator area every morning and evening. ( Id. ¶ 56.) Singh inspected the escalator, at most, one hour before plaintiff's accident and did not notice any oily substance or other hazardous condition during that inspection or any other inspection that day. ( Id. ¶¶ 52-53, 55.) Moreover, between the time of Singh's last inspection and plaintiff's accident, which was no more than an hour later, Singh, who carries a walkie-talkie, did not receive any notices or complaints about any dangerous conditions. ( Id. ¶ 54.) After Plaintiff left the store, Singh went to check the escalator but did not see an oily substance or any other hazardous condition. ( Id. ¶ 59).
A. Summary Judgment ...