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Capobianco v. The Stop & Shop Supermarket Co. LLC

United States District Court, S.D. New York

March 24, 2017

HARRIET CAPOBIANCO and CARMINE CAPOBIANCO, Plaintiffs,
v.
THE STOP & SHOP SUPERMARKET COMPANY LLC, Defendant.

          OPINION & ORDER

          NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE.

         Plaintiff Harriet Capobiaco's recollection of the scene of an accident, where she allegedly fell on a slippery floor at Defendant The Stop & Shop Supermarket Company LLC's store in New City, New York, varies dramatically from the conditions observed by the supermarket's employees. Defendant seeks summary judgment on Plaintiffs slip and fall negligence claim, but for the reasons discussed below that motion is DENIED.

         BACKGROUND

         This Opinion assumes the parties' familiarity with the underlying claims, factual allegations, and procedural history in this matter. To briefly summarize, this action involves an alleged slip and fall at a supermarket in New City, New York. Plaintiff has testified that upon entering the "bottle room"-the area in the supermarket where customers tend to their recycling needs-she noticed a mop and bucket off to the side but continued on, slipped, and fell to the floor. Once she was on the floor, she noticed the entire surface was wet as though it had recently been mopped, and she saw what appeared to be mop lines. Employees of the supermarket have testified to assisting Plaintiff after she fell, but none of them witnessed the wet floor or the mopping equipment.

         Defendant has now moved for summary judgment on Plaintiffs' claim of negligence, but Plaintiff argues that there are genuine issues of material fact which preclude summary judgment. The motion was fully briefed as of July 25, 2016. (See ECF No. 30.)

         STANDARD ON A MOTION FOR SUMMARY JUDGMENT

         A “court shall 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). The moving party bears the initial burden of pointing to evidence in the record, “including depositions, documents [and] affidavits or declarations, ” id. at 56(c)(1)(A), “which it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may also support an assertion that there is no genuine dispute by “showing . . . that [the] adverse party cannot produce admissible evidence [in] support” of such a contention. Fed.R.Civ.P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to the non-moving party to identify “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation and quotation marks omitted).

         A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248; accord Benn v. Kissane, 510 F.App'x 34, 36 (2d Cir. 2013) (summ. order). Courts must “constru[e] the evidence in the light most favorable to the non-moving party and draw[] all reasonable inferences in its favor.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal quotation marks omitted). The party asserting that a fact is genuinely disputed must support their assertion by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). “Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).

         The nonmoving party “may not rely on conclusory allegations or unsubstantiated speculation.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Similarly, “a party cannot create an issue of fact by submitting an affidavit in opposition to summary judgment that contradicts prior deposition testimony.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010) (citing Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (such affidavits “greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact”)). But the mere fact that a non-movant's factual allegations in opposition are “self-serving” does not automatically render them insufficient to defeat summary judgment. Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998). Instead, summary judgment should be granted when a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, ” where “that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

         In reviewing the record, “the judge's function is not himself to weigh the evidence and determine the truth of the matter, ” nor is it to determine a witness's credibility. Anderson, 477 U.S. at 249. Rather, “[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial.” Id. at 250.

         DISCUSSION

         Having reviewed the parties' Rule 56.1 statements, accompanying exhibits and affidavits, and arguments, the Court concludes there are genuine disputes of material fact precluding summary judgment.[1] Defendant argues that Plaintiff has failed to produce any “direct evidence that [an employee] mopped the floor of the bottle room prior to [the] accident” and therefore caused the “alleged wet condition of the floor[.]” (Def. Mot. at 11.) In making this argument, Defendant's summary of Plaintiff's version of the events-and the crucial item omitted from that summary-highlight the disputed fact that precludes granting summary judgment in Defendant's favor. (See also Pls. 56.1 Statement ¶¶ 8, 9, 11.)

         “To establish a prima facie case of negligence under New York law, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir. 2006) (internal citations and quotations omitted). “With respect to a motion for summary judgment in a slip-and-fall case, ‘the plaintiff must demonstrate a genuine issue of material fact that the defendant either created the dangerous condition or had actual or constructive notice of the condition.'” Gonzalez v. Kmart Inc., No. 13 Civ. 5910 (PKC) (VMS), 2016 WL 3198275, at *3 (E.D.N.Y. June 8, 2016) (quoting Lionel v. Target Corp., 44 F.Supp.3d 315, 318 (E.D.N.Y. 2014)) (emphasis added). “Summary judgment for the defendant . . . is appropriate where a plaintiff has provided no evidence from which it could be inferred that the defendant had even constructive notice of the defect before the plaintiff's injury.” Hassan v. Whole Foods Mkt.

         Grp., Inc., No. 13 Civ. 6345 (LLS), 2016 WL 3197133, at *2 (S.D.N.Y. June 6, 2016); see, e.g., Decker v. Middletown Walmart Supercenter Store, No. 15 Civ. 2886 (JCM), 2017 WL 568761, at *5 (S.D.N.Y. Feb. 10, 2017) (“no evidence that Defendant created the condition, and Plaintiff has not pointed to any circumstantial evidence that would create [such] an inference”); Gonzalez v. Kmart Inc., No. 13 Civ. 5910 (PKC) (VMS), 2016 WL 3198275, at *7 (E.D.N.Y. June 8, 2016) (“a reasonable jury could not conclude that . . . [d]efendant had actual or constructive notice of the ...


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