United States District Court, S.D. New York
OPINION AND ORDER
C. McCARTHY UNITED STATES MAGISTRATE JUDGE.
Lynette Decker commenced this diversity action against
Defendants Middletown Walmart Supercenter Store #1959
("Middletown Store"), Wal-Mart Stores East, LP
("Wal-Mart Stores East"), Wal-Mart Stores, Inc. and
Wal-Mart Associates, Inc. to recover for personal injuries
allegedly sustained as a result of a fall at the Middletown
Store on July 8, 2012. (Docket No. I). Before the Court
is Defendant's Motion for Summary Judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure
("Motion"). (Docket No. 29). The Complaint was
filed on April 14, 2015, (Docket No. 1), and the instant
Motion was filed on August 30, 2016, (Docket No. 29).
Plaintiff opposed the Motion on October 12, 2016, (Docket No.
33), and Defendant replied on October 19, 2016, (Docket No.
For the reasons that follow, Defendant's Motion is
following facts are gathered from Defendant's statement
filed pursuant to Rule 56.1 of the Local Rules of the United
States District Courts for the Southern and Eastern Districts
of New York ("Rule 56.1"),  (Docket No. 31),
Defendant's exhibits,  and the pleadings submitted by the
parties in support of their contentions. The facts are
construed in the light most favorable to Plaintiff as the
party opposing summary judgment.
8, 2012, Plaintiff visited the Middletown Store with her
sister, Jennifer Cornman, and her nephew, Kevin Cornman.
(Compl. at 2; Def. Ex. C at 2; Decker Dep. at 16:11-13,
20-24). Plaintiff was drawn to a display of twelve-packs of
Coke, and turned to her sister to point out the display.
(Decker Dep. at 19:10-21). As she turned to her sister,
Plaintiff fell. (Id.). She did not see what caused
her to fall. (Id. at 21:23-25; 23:7-13). Plaintiff
was in the store for approximately two to four minutes before
she fell. (Id. at 19:5-9). After she got up,
Plaintiff observed a clear substance on the floor.
(Id. at 23:14-24:2; 26:23-27:17; 31:3-7). The
substance reminded her of a raw egg, and was about the size
of an egg that had been cracked open, but Plaintiff did not
believe the substance was in fact an egg. (Id. at
23:14-24:2; 28:14-30:19). A small portion of the back of her
shirt was wet after the fall. (Id. at 27:25-28:13).
The substance was subsequently cleaned up with paper towels.
(Id. at 31:18-20). Plaintiff completed a customer
statement, dated July 8, 2012 at 3:11 p.m., describing her
accident. (Id. at 33:19-35:22; Def. Ex. E), In her
statement, Plaintiff wrote that she "was walking in and
fell on the floor there was a yellow slippery
substance." (Def. Ex. E). After Plaintiffs fall, she
left the Middletown Store and went in her sister's car to
a hospital. (Decker Dep. at 33:19-24; 36:18-25; Cornman Dep.
sister entered the Middletown Store behind Plaintiff and had
an unobstructed view of her prior to her fall. (Cornman Dep.
at8:20-9:24; 11:24-12:13). She saw her sister fall, but did
not see anything on the floor before the fall. (Id.
at 11:24-12:13). After the fall, Plaintiffs sister approached
her and she observed a substance that was "wet" and
"slimy." (Id. at 15:18-20). She described
it as "a raw egg and the yoke [sic] and like if it sits
for a little bit it gets a little bit darker yellow."
(Id. at 14:25-15:8). For this reason, she "was
thinking it was an egg." (Id.). She believed
the substance "looked like it was sitting for a while,
" based on its color. (Id. at 13:4-8; 20:5-11).
Neither Plaintiff nor her sister observed anything in the
surrounding area that provided information as to the source
of the substance. (Id. at 19:14-20:14; 21:23-22:2;
Decker Dep. at 30:20-31:2). Plaintiffs sister completed a
witness statement, dated July 8, 2012, that listed the time
of the accident as 3:11 p.m. and stated that
"[Plaintiff] was walking past register two and slipped
and fell on a yellow substance which appeared to be a broken
egg." (Cornman Dep. at 18:11-19:13; Def. Ex. G).
to Defendant's employee, the accident occurred in the
"front end" of the Middletown Store. (Campbell Dep, at
19:18-20:2; see also Cornman Dep. at 22:21-24).
Defendant's employees are trained on the prevention of
customer accidents, such as falls, and are directed to
"keep an eye [out]" for unsafe conditions.
(Id. at 19:6-17, 22:6-16). While maintenance staff
is responsible for maintaining the floor throughout the whole
store, the area in which Plaintiff fell is also monitored by
cashiers and a customer service manager. (Id. at
19:6-17; 19:25-20:6; 21:9-17). Subsequent to Plaintiffs fall,
an assistant store manager prepared a written claim report.
(Def. Ex. I). The report identified the store manager at the
time of Plaintiffs fall and a customer service manager who
was the first to respond to the fall, described a yellow
substance that was on the floor, and repeated Plaintiffs
claim that she "fell on something." (Id; see
also Campbell Dep. at 12:9-18).
surveillance video of the area where the accident occurred
indicates that Plaintiff fell at 3:02:41 p.m. (Def. Ex. J).
In the minutes leading up to the fall, the footage reveals
that four other individuals walked through the same area
without incident. (Id.). At 3:01:40 p.m., a man and
a woman walked through the area; at 3:02:02 p.m., a third
individual walked through the area; and, at 3:02:15 p.m., a
fourth individual walked through the area. (Id.).
Twenty-six seconds later, at 3:02:41 p.m., Plaintiff walked
through the area and fell. (Id.). At 3:02:56 p.m.,
fifteen seconds after her fall, Plaintiff was up from the
ground. (Id.). At 3:04:29 p.m.,
Defendant's employees cleaned the substance from the
floor with paper towels. (Id.).
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure, the
moving party bears the burden of demonstrating that it is
entitled to summary judgment. See Haminski v.
Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The Court must
grant summary judgment "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catreit, 477 U.S. 317, 322 (1986). A genuine dispute as
to a material fact "exists for summary judgment purposes
where the evidence is such that a reasonable jury could
decide in the non-movant's favor." Beyer v. Cty.
of Nassau, 524 F, 3d 160, 163 (2d Cir. 2008) (citation
omitted); see also Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 247-48 (1986). "A fact is material if it
might affect the outcome of the suit under the governing
law." Casalino v. N.Y. State Catholic Health Plan,
Inc., No. 09 Civ. 2583 (LAP), 2012 WL 1079943, at *6
(S.D.N.Y. Mar. 30, 2012) (citation omitted).
reviewing a motion for summary judgment, the Court "must
draw all reasonable inferences in favor of the [non-moving]
party" and "must disregard all evidence favorable
to the moving party that the jury is not required to
believe." Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 150-51 (2000) (citations omitted).
That said, the Court may not weigh the evidence or determine
the truth of the matter, but rather conducts "the
threshold inquiry of determining whether there is the need
for a trial." Anderson, 477 U.S. at 250.
moving party bears the initial burden of "demonstrating
the absence of a genuine issue of material fact."
Holcomb v. lona Coll., 521 F.3d 130, 137 (2d Cir.
2008) (citing Celotex, 477 U.S. at 323). If the
moving party meets this initial burden, the burden then
shifts to the non-moving party to "present evidence
sufficient to satisfy every element of the claim."
Id. "The non-moving party 'is required to
go beyond the pleadings' and 'designate specific
facts showing that there is a genuine issue for trial,
'" id. (citing Celotex, 477 U.S.
at 324; Anderson, 477 U.S. at 249-50), and
"must do more than simply show that there is some
metaphysical doubt as to the material facts, "
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). If the non-moving party fails to
establish the existence of an essential element of the case
on which it bears the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at
Southern District of New York, parties moving for and
opposing summary judgment motions must also submit short and
concise statements of facts, supported by evidence that would
be admissible at trial. Local Civ. R. 56.1. The opposing
party must specifically controvert the moving party's
statement of material facts, or the moving party's facts
will be deemed admitted for purposes of the motion. Local
Civ. R. 56.1(c); T.Y. v. N.Y.C. Dep't of Educ.,
584 F.3d 412, 418 (2d Cir. 2009) ("A nonmoving
party's failure to respond to a Rule 56.1 statement
permits the court to conclude that the facts asserted in the
statement are uncontested and admissible."). However,
"uncontested fact[s] cannot be deemed true simply by
virtue of their assertion in a Local Rule 56.1
statement"-in the absence of citations or "where
the cited materials do not support the factual assertions in
the [statements, the Court is free to disregard the
assertion." Holtz v. Rockefeller & Co., 258
F.3d 62, 73 (2d Cir. 2001) (quotation marks and citations
omitted). The Court therefore has discretion "to conduct
an assiduous review of the record even where one of the
parties has failed to file such a statement."
Holtz, 258 F, 3d at 73 (quotation marks and
citations omitted); see also Fed. R. Civ. P.
56(c)(3). Nevertheless, the Court is "not required to
consider what the parties fail to point out."
Monahan v. N.Y.C. Dep 't of Corr., 214 F.3d 275,
292 (2d Cir. 2000) (quotation marks and citations omitted).
Burden of Proof for Summary Judgment
York law governs the substantive slip and fall
claim. However, federal law applies to procedural
aspects of the claim. Hanna v. Plumer, 380 U.S. 460,
465 (1965). As Defendant correctly argues, the moving
party's burden of proof on a summary judgment motion is
procedural, and is therefore governed by federal law.
Tingling v. Great All. & Pac. Tea Co., No. 02
CIV. 4196 (NRB), 2003 WL 22973452, at *2 (S.D.N.Y. Dec. 17,
2003) ("We find that the issue of what burden a movant
for summary judgment bears when the ultimate burden of proof
lies with the non-movant is procedural rather than
substantive, under the distinction created by Erie R. Co.
v. Tompkins, 304 U.S. 64 (1938) and its progeny, and
accordingly is subject to federal rather than state
law.") (citing Celotex, 477 U.S. 317); see
also Hughes v. United States, No. 12 CIV. 5109 CM, 2014
WL 929837, at *4 (S.D.N.Y. Mar. 7, 2014) (applying the
federal burden of proof standard on a motion for summary
judgment, explaining that "[e]ven though the substantive
claims are governed under New York law, the procedural issues
are determined under the federal standard."); Doona
v. OneSource Holdings, Inc., 680 F.Supp.2d 394, 396
(E.D.N.Y.2010) C'[T]he respective burdens that the
parties bear in a summary judgment motion are procedural
rather than substantive, and are thus subject to federal
rather than state law.").
federal burden of proof on a motion for summary judgment
differs from the corresponding standard under New York law on
a slip-and-fall action. See, e.g., Tenay v.
Culinary Teachers Ass'n of Hyde Park, 281
F.App'x 11, 12-13 (2d Cir. 2008); Vasquez v. United
States, No. 14-CV-1510 (DF), 2016 WL 315879, at *4-5
(S.D.N.Y. Jan. 15, 2016). "Under New York law, '[a]
defendant who moves for summary judgment in a [sl]ip-and-fall
case has the initial burden of making a prima facie showing
that it neither created the alleged hazardous condition, nor
had actual or constructive notice of its existence for a
length of time sufficient to discover and remedy
it.'" Vasquez, 2016 WL 315879, at *4
(quoting Levine v. Amverserve Ass'n, Inc., 938
N.Y.S.2d 593, 593 (2d Dep't 2012)). Conversely, under
federal law, the moving party "need not make any
affirmative prima facie showing on [a] motion for
summary judgment, and may discharge its burden of proof
merely 'by pointing to an absence of evidence to support
an essential element of [Plaintiffs] claim.'"
Id. at *5 (quoting Zeak v. United States,
No. 11 CIV. 4253 KPF, 2014 WL 5324319, at *8 (S.D.N.Y, Oct.
20, 2014)) (citing Feis v. United States, 394
F.App'x 797, 798-99 (2d Cir. 2010) (applying New York
substantive law and federal procedural law, finding that
"contrary to plaintiffs assertions, defendant was not
required to affirmatively disprove each element of plaintiff
s [slip-and-fall] claim."); Hughes, 2014 WL
929837, at *4),  Therefore, because the burden of proof on
a motion for summary judgment is procedural and federal law
applies, Defendant may meet its burden by '"showing-
that is, pointing out to the district court-that there is an
absence of evidence to support the nonmoving party's
case, '" but need not "raise a prima facie
case." Hughes, 2014 WL 929837, at *4 (quoting
Celotex, 477 U.S. at 325). If Defendant meets that
burden, the burden then shifts to Plaintiff to present
evidence on each element of the claim and demonstrate that a
genuine issue of material fact exists for
trial. Celotex, 477 U.S. at 322-24;
Holcomb, 521 F.3d at 137.