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Dranoff v. Sam's East, Inc.

United States District Court, S.D. New York

April 20, 2017

MARILYN DRANOFF, Plaintiff,
v.
SAM'S EAST, INC., Defendant.

          Courtney Campbell Sobo & Sobo, LLP Middletown, New York Counsel for Plaintiff

          Patricia A. O'Connor Brody, O'Connor & O'Connor, Esqs. Northport, New York Counsel for Defendant Seibel, J.

          OPINION AND ORDER

          CATHY SEIBEL, U.S.D.J.

         Before the Court is the Motion for Summary Judgment of Defendant Sam's East, Inc., (Doc. 22). For the following reasons, Defendant's Motion is GRANTED.

         I. Background

         The following facts are based on Defendant's Local Civil Rule 56.1 Statement of Material Facts, (Doc. 24 (“D's 56.1 Stmt.”)), Plaintiff Marilyn Dranoff's Counter-Statement thereto, (Doc. 29 (“P's 56.1 Stmt. & Resp.”)), and the supporting materials. The facts are undisputed except where noted.

         A. Facts

         On October 14, 2013, Plaintiff was walking down the main aisle at Defendant's Middletown Sam's Club (the “Club”) when, after walking approximately forty feet, she “slipped on water and fell” in front of the fresh flower display. (P's 56.1 Stmt. & Resp. ¶¶ 1, 2, 5-7.) A video of the Club on the day in question shows two individuals pushing shopping carts before the fall in the general area where Plaintiff fell. (Id. ¶¶ 44-45.) Defendant asserts that the first individual was an unidentified customer, but does not allege any identity as to the second. (Id.) Plaintiff contends that the second individual was an employee of the Club because he is wearing a blue vest and white name tag and appears to be restocking shelves with items in his shopping cart. (Id. ¶ 45.) Plaintiff further notes that the individual is likely an employee because he passed by the relevant location four times in the hour prior to the fall, including one minute before. (Id.) The Court's review of the video, (O'Connor Aff. Ex. J), [1] however, reveals that it is impossible to tell whether the same person passed by all four times, (see note 8 below).

         Plaintiff did not see water on the floor before her fall. (P's 56.1 Stmt. & Resp. ¶ 8.) After falling she remained on the floor for one to two minutes, (id. ¶ 9), and observed that the floor was wet where she fell, (id. ¶ 10), and that there was a flower display nearby, (id. ¶ 12). The Club sold pre-made bouquets in little buckets that contained some water. (Id. ¶¶ 24-26.) In the hour before the fall, four customers took bouquets from the display, the fourth eighteen minutes before Plaintiff fell. (O'Connor Aff. Ex. J.) Plaintiff testified that “[i]t seemed obvious that the flower display was leaking some water” but admits that she cannot be certain that she saw water leaking from the display. (P's 56.1 Stmt. & Resp. ¶¶ 14-15; O'Connor Aff. Ex. D, at 28-29.)

         After being helped to her feet by two customers, Plaintiff and another female approached Miriam Rodriquez, a Club employee. (P's 56.1 Stmt. & Resp. ¶¶ 11, 17, 18, 19.) According to Ms. Rodriquez, Plaintiff told her that she had fallen by the flowers and mentioned that there was water on the floor. (Id. ¶¶ 20-21.) Danielle Grosskopf, an assistant manager of the Club, was then made aware of the situation. (Id. ¶¶ 22, 23, 27.) Plaintiff filled out a customer accident report saying that she slipped on water and fell by the flower display, which is consistent with her deposition testimony and the video. (Id. ¶ 29; O'Connor Aff. Exs. D, G, J.) Ms. Grosskopf inspected the accident scene and took a photograph of the floor where Plaintiff fell. (P's 56.1 Stmt. & Resp. ¶¶ 31, 33.) Water drops are observable in the photograph that Ms. Grosskopf took of the scene. (Id. ¶ 35; O'Connor Aff. Ex. I.) She then instructed maintenance to clean up the water from the floor. (P's 56.1 Stmt. & Resp. ¶ 32.) Ms. Grosskopf filled out the Club's accident report where she wrote that there were “just a few drops of wate[r], ” where Plaintiff fell. (Id. ¶ 30; O'Connor Aff. Ex. H.)

         B. Procedural History

         On December 28, 2015, Plaintiff filed this action in the New York Supreme Court in Orange County asserting a negligence claim. (Doc. 2 Ex. A.) On August 16, 2016, the case was removed to this Court on diversity grounds. (Id.) On January 3, 2017, a pre-motion conference was held at which Defendant's potential motion for summary judgment was discussed. On January 20, 2017, Defendant moved for summary judgment. (Doc. 22.)

         II. Legal Standard

         “[T]he 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, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and its progeny, and accordingly is subject to federal rather than state law.” Tingling v. Great Atl. & Pac. Tea Co., No. 02-CV-4196, 2003 WL 22973452, at *2 (S.D.N.Y. Dec. 17, 2003). Summary judgment is appropriate when “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). “[T]he dispute about a material fact is ‘genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law . . . . ...


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