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Gussoff v. BJ's Wholesale Club, Inc.

United States District Court, Eastern District of New York

January 16, 2015


JULIEN & SCHLESINGER, P.C. Attorneys for Plaintiff By: Michael S. Schlesinger, Esq.

TORINO & BERNSTEIN, P.C. Attorneys for Defendants By: Bruce Anthony Torino, Esq., Ellie S. Konstantatos, Esq., Patricia Bruno Golden, Esq.


Denis R. Hurley Unites States District Judge

Beverly Gussoff (“plaintiff”) commenced this action against BJ’s Wholesale Club, Inc. (“BJ’s”) and Beacon Holding Inc. (collectively “defendants”) alleging that defendants were negligent in “the operation, maintenance, management, inspection, control and supervision of the premises” of the BJ’s located at 6000 Brush Hollow Road, Westbury, and “more specifically, the curb ramp leading from the handicap[ped] parking space to the walkway in front of the abovementioned premises.” (Compl. ¶ 28.) Presently before the Court is defendants’ motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of plaintiff's claims in their entirety. For the reasons that follow, defendants’ motion is denied.


The following material facts, drawn from the parties' Local Civil Rule 56.1 Statements and evidentiary submissions, are undisputed unless otherwise noted.

On March 6, 2012, plaintiff, then 82 years old, and her son, Michael Gussoff (“Michael”), arrived at the BJ’s Wholesale Club in Westbury, New York in the same vehicle. Michael, who had been driving the vehicle, parked in a handicapped spot in front of the entrance to the BJ’s. Plaintiff and her son had parked in the same or similar spot on several prior occasions. Plaintiff exited the vehicle from the passenger side and walked towards the curb cut in front of the BJ’s. According to Michael’s testimony, when plaintiff exited the vehicle she stood approximately four feet from the handicapped ramp. (Michael Gussoff’s Dep. at 23.) Plaintiff testified that as she walked up to the ramp, her “left foot caught on . . . the slope of the ramp, ” causing her to fall. (Pl.’s Dep. at 28-29.) Additionally, she testified that there was nothing preventing her from seeing where she was walking as she approached the curb (id. at 38) and that she did not look down prior to falling. (Id. at 28-29.)


I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a “scintilla of evidence, ” Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or “some metaphysical doubt as to the material facts, ” Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and cannot rely on the allegations in his or her pleadings, on conclusory statements, or on “mere assertions that affidavits supporting the motion are not credible, ” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (citations omitted). “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

The district court, in considering a summary judgment motion, must also be mindful of the underlying burdens of proof because “the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions." Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, “the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the" non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to present sufficient evidence in support of his claim, the burden shifts to the non-movant to offer “persuasive evidence that his claim is not 'implausible.'" Id. at 211 (citing Matsushita, 475 U.S. at 587).

II. Defendant's Motion for Summary Judgment

“In order to demonstrate negligence in New York, a plaintiff must plead and prove that (1) defendant owed a duty to plaintiff; (2) defendant breached that duty; (3) the breach of that duty was the actual and proximate cause of the plaintiffs injuries.” Wurtzel v. Starbucks Coffee Co., 257 F.Supp.2d 520, 526 (E.D.N.Y. 2003) (citing Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002)). A landowner’s duty to a person upon his premises is that of “reasonable care under the circumstances.” Basso v. Miller, 40 N.Y.2d 233, 241 (1976). Moreover, “[t]o impose liability upon the defendants for the plaintiffs fall, there must be evidence tending to show the existence of a dangerous or defective condition and that the defendants either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time.” Drago v. DeLuccio, 79 A.D.3d 966, 966 (2d Dep’t 2010). “However, a landowner has no duty to protect or warn against conditions that are not inherently dangerous and that are readily observable by the reasonable use of one’s senses.” Groon v. Herricks Union Free School Dist., 42 A.D.3d 431, 432 (2d Dep’t 2007). In other words, “[i]f a ...

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