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Forgione v. Nickels and Dimes, Inc.

United States District Court, N.D. New York

September 15, 2014

ADELE FORGIONE, Individually and as Parent and Natural Guardian of L. V. an Infant, Plaintiff,
v.
NICKELS AND DIMES, INC., d/b/a Tilt 82, Defendant.

HACKER MURPHY, LLP, JOHN F. HARWICK, ESQ., Latham, NY, Counsel for Plaintiff.

AHMUTY DEMERS & McMANUS, PATRICK J. PICKETT, ESQ., Hopewell Junction, NY, Counsel for Defendant.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this personal injury action filed by Adele Forgione ("Plaintiff") on behalf of her infant daughter, L.V., against Nickels and Dimes Incorporated ("Defendant"), is Defendant's motion for summary judgment. (Dkt. No. 13.) For the reasons set forth below, Defendant's motion is granted, and Plaintiff's Complaint is dismissed.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, in her Complaint, Plaintiff alleges that, as her infant daughter ("L.V.") was standing in front of a counter ("the Counter") within a premises owned and operated by Defendant ("the Arcade"), laminate protruding from the Counter lacerated L.V.'s leg ("the Accident"), causing, inter alia, severe personal injury, loss of enjoyment of life, and medical expenses. (Dkt. No. 1, at ¶¶ 12-17 [Plf.'s Compl.].) Based on these factual allegations, Plaintiff's Complaint asserts a claim of negligence. ( Id. at ¶¶ 18-24.) As relief, Plaintiff's Complaint seeks damages on behalf of L.V. in the amount of $300, 000, as well as damages in Plaintiff's own individual capacity in the amount of $50, 000. ( Id. at ¶¶ 22-28.) Familiarity with this claim and the factual allegations supporting it in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties.

B. Parties' Briefing on Defendant's Motion for Summary Judgment

Generally, in support of its motion for summary judgment, Defendant asserts the following two arguments: (1) as a matter of law, Defendant cannot be liable for negligence because insufficient admissible record evidence exists from which a rational fact finder could conclude that Defendant had actual or constructive notice of any defect in the Counter before the Accident; and (2) as a matter of law, Defendant cannot be liable for negligence because insufficient admissible record evidence exists from which a rational fact finder could conclude Defendant created the condition that caused the Accident. (Dkt. No. 13, Attach. 3, at 9-15 [Def.'s Memo. of Law].)

Generally, in opposition to Defendant's motion, Plaintiff asserts the following three arguments: (1) Defendant can be liable for negligence because a rational fact finder could conclude that Defendant had constructive notice of a defect in the Counter through its regular but inadequate inspections of the Counter; (2) Defendant can be liable for negligence because a rational fact finder could conclude that Defendant created the condition which caused the Accident through Defendant's repeated use of a cleaning agent to clean the Counter; and (3) in any event, the doctrine of res ipsa loquitor is available to Plaintiff, permitting the fact finder to draw an inference of negligence. (Dkt. No. 18, at 3-9 [Plf.'s Opp'n Memo. of Law].)

Generally, in its reply to Plaintiff's opposition, Defendant asserts the following two arguments: (1) Plaintiff's argument that Defendant actually caused the Accident by using a cleaning agent to clean the Counter is not supported by admissible record evidence; and (2) the doctrine of res ipsa loquitir does not apply because (a) the Counter was not within the exclusive control of Defendant, and (b) in any event, the evidence shows that it is equally likely that the Accident was caused when L.V. placed her flip-flop shoe on a lip or ledge on the front of the Counter. ( See generally Dkt. No. 20, Attach. 1, at 3-8 [Def.'s Reply Memo. of Law].)

C. Undisputed Material Facts

Unless otherwise supported by citations to the record, the following material facts have been asserted and supported by Defendant in its Local Rule 7.1 Statement of Undisputed Material Facts, and either admitted or denied without a supporting record citation by Plaintiff in her Local Rule 7.1 Response. ( Compare Dkt. No. 13, Attach. 2 [Def.'s Rule 7.1 Statement] with Dkt. No. 18, Attach. 1 [Plf.'s Rule 7.1 Response].)

On July 25, 2011, and for approximately twenty-five years before that date, Defendant operated the Tilt arcade in the Aviation Mall in Queensbury, New York. On that day, the manager of the Arcade, Sandra (Monroe) Cuthrell, reported for work. Also on that day, Plaintiff and her husband, Mark Vacca, as well as their infant daughter, L.V. (all of whom were residents of Canada and were on vacation in the Lake George area), visited the Arcade. L.V. was wearing flip-flop shoes. (Dkt. No. 13, Attach. 6, at 29 [Vacca Depo.]; Dkt. No. 13, Attach. 10, at 1 [Accident Report]; cf. Dkt. No. 13, Attach. 7, at 18 [Forgione Depo., not denying that L.V. was wearing flip-flop shoes].) At the time of L.V.'s visit to Tilt, there were other customers in the ...


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