SANDRA J. FEUERSTEIN, District Judge.
Plaintiffs Delia Haxton ("Delia") and Thomas Haxton ("Thomas"; together with Delia, the "Plaintiffs" or "Haxtons") commenced this action against Defendant Costco Wholesale Corp. (hereafter, "Costco", the "Company" or "Defendant")
The subject Warehouse opened in 1987. (See 56.1 Stmt., ¶2.) On March 7, 2017, at approximately 10:30 a.m., Delia tripped outside the entranceway to the Warehouse (hereafter, the "Accident"). (See id., ¶1; see also id. at ¶6 ("Plaintiffs were walking toward the [W]arehouse from the parking lot when [Delia] tripped.").) At that time: the Warehouse had an asphalt parking lot that met a concrete sidewalk with a "sloping curb" located approximately 25 feet from the eastern entranceway of the Warehouse (see id., ¶1); "the concrete sidewalk was `slightly higher' than the asphalt", with a "slight little edge" (id., ¶3) or "lip" (id., ¶4) of an approximate height differential of "two fingers" (id., ¶3; cf., 56.1 Counter, ¶3 (acknowledging "that Thomas. . . described the height differential between the asphalt and the concrete as approximately `two fingers' high")); the asphalt and concrete sidewalk were different colors (see id., ¶1); there was no demarcation, such as paint, at the sidewalk's edge (see 56.1 Counter, ¶27); and, there were no customers blocking Delia's view as she approached the entrance (see 56.1 Stmt., ¶9). Delia does not know whether, when she tripped, her foot was on the asphalt or the concrete; nor does she know with which foot she tripped. (See id., ¶11; see also id. at ¶25 ("[Delia] testified that at the moment her foot tripped, she did not know whether it was fully on the asphalt, partially on the asphalt and concrete or something else.").) She "did not see what caused her to trip before, or after, the [A]ccident"; all she "recalls seeing was a `slight puddle,' but she does not know if that had anything to do with [the A]ccident." (Id., ¶12; cf., 56.1 Counter, ¶12 ("Plaintiff acknowledges she did not see what caused her to trip before or when she actually fell and that she recalled seeing a `slight puddle,' which Plaintiff does not claim had anything to do with her accident." (emphasis added)).) Delia "does not know where she tripped," and neither she "nor her husband could point to the [A]ccident location in a photograph of the entrance" to the Warehouse. (Id., ¶14; cf., 56.1 Counter, ¶14 ("Plaintiffs acknowledge [they] do not know `exactly' where Delia. . . tripped in that neither Delia. . . nor. . . Thomas could point to the precise location at which Delia Haxton's foot made contact with the edge of the sidewalk before falling.").) Further, Thomas did not see what caused Delia to trip. (See id., ¶13.) Similarly, while "Costco Front End Manager Michael Fazio [(hereafter, "Fazio")] responded to the [A]ccident[; h]e does not know where [Delia] tripped." (Id., ¶15.)
On an average daily basis, approximately 2,600 persons enter the Warehouse, and on the day of the Accident, prior to its occurrence, at least 144 Costco members had entered the Warehouse without incident. (See id., ¶5.) Costco had received no complaints regarding the asphalt or concrete; nor had there been prior accidents involving the asphalt, curb or sidewalk in front of the Warehouse. (See id., ¶¶20, 21; cf., 56.1 Counter, ¶20 ("Plaintiffs acknowledge they have been unable to discover any written report or reported complaints to [Costco] about the asphalt or concrete before [Delia]'s accident; however, Plaintiffs do not admit that no such complaints were made"
On March 9, 2017, the Haxtons' daughter, Wendy Haxton ("Wendy"), went to the Warehouse and, among other things, took photographs of its entryway. (See Ex. M (Wendy's July 6, 2018 Depo. Tr. (hereafter, "Wendy Depo")) 9:10-25, 12:16-20, 23:9-24:10); see also Ex. H (select photographs taken by Wendy on March 9, 2017 of the Warehouse entryway; previously marked on April 18, 2018 as Defendant's Exhibits A-F.
Wendy also testified that when she exited the Warehouse on March 9, 2017, she asked a Costco employee if she had seen her mother fall or knew where she had fallen, to wit:
(Wendy Depo. 18:12-22, 19:9-15 (emphasis added); see also id. at 17:10-18:11 (identifying the employee as a female who checks customers' carts at the door, but stating she never learned the employee's name); see also 56.1 Counter, ¶33 (putting forth "[t]hat one or more of Defendant's employees made statements to Wendy. . . and Delia. . ., respectively, acknowledging that other people had tripped in the same area as Delia. . . before [the Accident] and that Defendant was aware of such prior incidents" (citing Delia Aff., Wendy Aff.).
(56.1 Reply, ¶33.)
On May 22, 2017 Plaintiffs filed their Verified Complaint (dated and verified May 10, 2017) in state court, alleging Delia fell when entering the Warehouse and sustained serious injuries, which fall was caused by Costco's negligent design, construction, and maintenance of the parking lot area adjoining the entranceway into the Warehouse. (See Complaint, ¶8.) Costco removed the action to this Court on July 5, 2017 (see ECF No. 1) and filed its Answer on July 10, 2017 (see ECF No. 6). After protracted discovery, Costco moved for summary judgment.
Costco's primary argument in support of its Summary Judgment Motion is that Delia is unable to identify the location or cause of her fall, which is fatal to her action because to let the action proceed would be to speculate that Costco's alleged negligence proximately causing Delia's injuries. (See Support Memo at 3 (quoting Patrick v. Costco Wholesale Corp., 77 A.D.3d 810 (2d Dept. 2010) ("A plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.")); see also id. at 4-5 (citing and quoting record evidence supporting contention that "Plaintiffs. . . cannot either identify the actual cause of [Delia's] fall or submit any evidence identifying the cause").) Costco maintains "[t]here is no admissible evidence whatsoever establishing what caused the [W]hite [M]ark to be on the sidewalk or connecting the [W]hite [M]ark to the accident location" (id. at 7), and that the existence of the White Mark "is based on hearsay and pure speculation by [the Haxtons'] daughter." (Id.; see also id. at 8.) Defendant contends "[t]here is no evidence in this case to show that [Delia] tripped over anything other than her own two feet, or that she merely lost her balance" for which Costco cannot be held liable. (Id. at 8.)
Costco further argues that, to the extent Delia could identify a known defect which caused her fall, such alleged defect is trivial as a matter of law. (See id. at 9.) It asserts that after the examination of all the admissible evidence in the record, "including the `width, depth, elevation, irregularity, and appearance of the defect, along with the `time, place, and circumstances' of the injury,'" the alleged defect here is not actionable. (Id. (quoting Estrella-Jones v. United States, No. 13-cv-5454, 2016 WL 7243540 (E.D.N.Y. Dec. 14, 2016), aff'd, 706 F. App'x 28 (2d Cir. Dec. 14, 2017) (summary order)); see also id. at 10-11, 12 ("[A]ny alleged defect, which [Delia] cannot even connect to the cause of her fall, is trivial and, therefore, not actionable as a matter of law.")
Costco also contends that the Plaintiffs cannot make out a prima facie case because Costco neither created nor had actual or constructive notice of the alleged condition which caused Delia's fall. (See id. at 13-15; cf., Complaint, ¶8 (identifying the alleged condition as, inter alia, an uneven entryway).) Reiterating that Delia is "unable to identify where she fell or what caused her to fall, which is fatal to her claim," the Company further asserts that the Plaintiffs have "not put forth any evidence that [Costco] created or had actual or constructive notice of such condition." (Id. at 14; see also id. at 15 ("Here, there is no evidence whatsoever to adduce what the actual condition was that caused [Delia] to fall or that such condition was a known dangerous defect constituting a tripping hazard.").)
Finally, the Company seeks to preclude the testimony and reports of Plaintiffs' proffered experts (see id. at 16), arguing that neither of Plaintiffs' experts are qualified, lacking sufficient relevant expertise (see id. at 18 (re: Besemer), 22 (re: Fellman)), and that as to their reports: Besemer's "is not founded in fact, is conclusory, speculative and wholly contradictory to [Delia]'s testimony" (id. at 19); and Fellman's "is conclusory, speculative and not based on fact or reliable methodology" (id. at 22; see also id. at 23 ("The details Mr. Fellman relied upon in forming his opinion were provided solely by [Delia]'s counsel. Plaintiff and her husband testified that they never spoke with Mr. Fellman about the cause or location of the accident." (citations omitted))). Moreover, Costco contends that "Fellman should also be precluded from testifying and his report should not be considered as he maintains a bias," because he was previously represented by Plaintiffs' counsel when named as a defendant in an ADA-violation case and his work in this case "was done gratis as a favor." (Id. at 24.)
Plaintiffs counter that they have sufficiently identified the location and cause of Delia's fall, arguing "[k]nown facts coupled with logical deductions and reasonable inference demonstrate with little doubt that Delia. . . tripped when her foot caught on the sidewalk edge as she transitioned from the asphalt parking area to the sidewalk. . . ." (Opp'n at (unnumbered) 1 (citing Ex. 4); see also id. at 3 (stating Delia's "claim as to where and how she fell emanate from reasonable inferences drawn from known facts," including photographs of the White Mark as "one indication as to where the accident occurred," as well as the Haxtons' "independent recollections" (citing Delia Aff. and Thomas Aff.
The Haxtons contend that "[t]he `trivial defect' exception is intended to exclude from tort liability minor, inconsequential physical defects that would be virtually impossible for someone in control of property to discover or prevent" or "could only have been guarded against by the exercise of extraordinary care and foresight." (Id. at 7 (citations and internal quotation marks omitted).) Plaintiffs argue that a jury "could readily find that the condition was not so obvious" "[f]rom the perspective of a reasonably prudent pedestrian" because the two surfaces where Delia's fall allegedly occurred were "both worn, dirty and wet" and Costco negligently created the condition and failed to take precautions, e.g., providing a visual demarcation where the two surfaces abutted. (Id. at 9.) They contend that "[n]either extraordinary care or [sic] foresight were [sic] needed to reduce or eliminate the risk which Defendant created here." (Id.)
Plaintiffs also argue that there was evidence of both actual and constructive knowledge of the alleged defective condition. Plaintiffs claim that Costco had actual notice as the creator of the condition. To support that position, the Haxtons rely upon the Depo. Photos as evidence that "sufficiently demonstrate[] that the condition at issue was created by design and was in existence over a significant length of time such that the Defendant would[,] in the exercise of reasonable care[,] have acquired knowledge thereof." (Id. at 10 (further asserting, "[p]hotographs may be used to prove notice of an alleged defect shown in the photographs, provided the photographs were taken reasonably close to the time of the accident, and there is testimony that the condition at the time of the accident was substantially as shown in the photograph" (citations omitted)).) They also contend that "one or more store employees acknowledged that there were prior tripping incidents and that management was aware of the conditions." (Id. at 11 (footnote omitted).)
Finally, Plaintiffs assert that their experts are qualified to express opinions regarding what they observed in the Depo. Photos. The Haxtons acknowledge that because Costco "redid the parking lot after the accident and before Plaintiffs' experts were engaged" the experts' opinions were based upon the Depo. Photos as opposed to actual site visits (id. at 12; see also id. at 13), but argue that Plaintiffs' verifications of said Photos provide a sufficient bases for their experts to rely upon them in rendering their opinions. (See id. ("It is sufficient that Plaintiffs themselves have identified the area depicted by the photographs as the place where Delia. . . fell.").) Moreover, since Plaintiffs' experts were "code officials", they are were able to discern, not merely speculate, as to what constituted an "unsafe condition". (See id. at 13.)
"Summary judgment is proper `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.'" ING Bank N.V. v. M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018) (quoting Fed. R. Civ. P. 56(a)); accord Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In ruling on a summary judgment motion, the district court must first "determine whether there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotations and citations omitted); see also Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677 (2009) ("On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts." (emphasis added; internal quotations and citation omitted)).
In reviewing the record to determine whether there is a genuine issue for trial, the court must "construe the evidence in the light most favorable to the non-moving party," Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) (quotations, alterations and citation omitted), and "resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quotations and citation omitted); see also Hancock v. County of Rensselaer, 823 F.3d 58, 64 (2d Cir. 2018) ("In determining whether there is a genuine dispute as to a material fact, we must resolve all ambiguities and draw all inferences against the moving party."). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Ricci, 557 U.S. at 586 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986)); accord Baez v. JetBlue Airways Corp., 793 F.3d 269, 274 (2d Cir. 2015).
"The moving party bears the initial burden of showing that there is no genuine dispute as to a material fact." CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (quotations, brackets and citation omitted); accord Jaffer, 887 F.3d at 114. "[W]hen the moving party has carried its burden[,]. . . its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . [,]" Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec., 475 U.S. at 586-87), and must offer "some hard evidence showing that its version of the events is not wholly fanciful[.]" Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008) (quotations and citation omitted). The nonmoving party can only defeat summary judgment by "adduc[ing] evidence on which the jury could reasonably find for that party." Lyons v. Lancer Ins. Co., 681 F.3d 50, 56 (2d Cir. 2012) (quotations, brackets and citation omitted). "`The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient' to defeat a summary judgment motion[,]" Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)), and "[a] court cannot credit a plaintiff's merely speculative or conclusory assertions." DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012); see also Federal Trade Comm'n v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) ("[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (quoting Fletcher v. Alex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995))); Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) ("While we are required to resolve all ambiguities and draw all permissible factual inferences in favor of the non-moving party, . . . conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment[.]" (quotations, alterations and citations omitted)). Since "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party[,] . . . [i]f the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted." Anderson, 477 U.S. at 249-50 (quotations and citations omitted).
Santora v. Costco Wholesale Corp., No. 17-cv-4415, 2018 WL 5886442, at *3 (S.D.N.Y. Nov. 8, 2018); Stephanides v. B.J. Wholesale Club, Inc., No. 12-cv-083, 2013 WL 16994901, at *3 (E.D.N.Y. Apr. 18, 2013) ("A plaintiff seeking to establish a prima facie case of negligence must show: (1) the defendant owed a duty to the plaintiff to exercise reasonable care; (2) the defendant breached that duty; and (3) the plaintiff was injured as a result of the defendant's breach." (citation omitted)). "Under New York law, `[i]n order for a plaintiff in a slip-and-fall case to establish a prima facie case of negligence against the property owner, the plaintiff must demonstrate (1) that the defendant created the condition that caused the accident, (b) that the defendant had actual knowledge of the condition, or (c) that the defendant had constructive notice of the condition.'" Khalil-Mirhom v. Kmart Corp., No. 12-cv-5512, 2014 WL 173415, at *4 (E.D.N.Y. Jan. 13, 2014) (quoting Casierra v. Target Corp., No. 09-cv-1301, 2010 WL 2793778, at *2 (E.D.N.Y. July 12, 2010); further citations omitted).
Czochanski v. Tishman Speyer Props, Ltd., 45 F. App'x 45, 47 (2d Cir. 2002) (affirming granting summary judgment in defendant property owners' favor on plaintiff's slip and fall action).
As an initial matter, Delia and Thomas cannot rely upon their respective Affidavits to create any disputed facts as to the cause of Delia's Accident when Delia testified as to her uncertainty of its cause and Thomas testified to not witnessing the fall. "It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." Colvin v. Keen, No. 13-cv-3595, 2016 WL 5408117, at *3 (E.D.N.Y. Sept. 28, 2016). Indeed,
Hayes v. N.Y.C. Dep't of Corrs., 84 F.3d 614, 619 (2d Cir. 1996); see also In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013) (holding that a party is prohibited "from defeating summary judgment simply by submitting an affidavit that contradicts the party's previous sworn testimony"); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) ("[F]actual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts her own prior deposition testimony."); Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) ("[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement. . . without explaining the contradiction or attempting to resolve the disparity."); Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) ("[I]t is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." (quotations and citation omitted)); Pierre v. Hilton Rose Hall Resort & Spa, No. 14-cv-3790, 2016 WL 4742281, at *10 (E.D.N.Y. Sept. 12, 2016) (finding plaintiff unable to produce competent evidence to defeat defendant's summary judgment motion where plaintiff's affidavit contradicted his deposition testimony); Ciliberti v. Int'l Bhd. of Elec. Workers Local 3, No. 08-cv-4262, 2012 WL 2861003, at *11 (E.D.N.Y. July 10, 2012) (rejecting plaintiff's attempt to create disputed issues of fact via affidavit, when his prior deposition testimony foreclosed any such disputes); Jeffrey v. Montefiore Med. Ctr., No. 11-cv-6400, 2013 WL 5434635, at *15 (S.D.N.Y. Sept. 27, 2013) (finding, where inconsistencies existed between a non-movant's affidavit and corresponding deposition testimony, which inconsistencies the non-movant party made no effort to reconcile or otherwise explain, the court did not consider those statements) (collecting cases). Having compared Wendy's deposition testimony to her Affidavit, the same conclusion is warranted as to Wendy's Affidavit.
Costco's position is that because Delia does not know why or where she fell, she cannot make out a prima facie case of showing the existence of a dangerous or defective condition; moreover, as a matter of law, any defect was trivial, open and obvious, and it has not been shown that Costco created or had knowledge of the alleged condition. The Court agrees with the Company's first contention: pursuant to "the peculiar facts and circumstances of [this] case" Trincere v. County of Suffolk, 665 N.Y.S.2d at 616, and, in particular, Delia's deposition testimony, Costco has established its prima facie entitlement to judgment as a matter of law because Delia's testimony demonstrated that she could not identify the cause of her fall. See Amster v. Kromer, 150 A.D.3d 804 (N.Y. App. Div., 2d Dept. 2017) (collecting cases); Aristizabal v. Kostakopoulos, 159 A.D.3d 860 (N.Y. App. Div., 2d Dept. 2018) (same). Indeed, while it is true that "business proprietors have a duty to maintain their properties in a reasonably safe condition," Estrella-Jones, 2016 WL 7243540, at *3 (quoting DiPonzio v. Riordan, 89 N.Y.2d 578, 582 (1997)) (internal quotation marks omitted), it is also well-established that "[a] plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation." Aristizabal, 159 A.D.3d at 860 (citing Kudrina v. 82-04 Lefferts Tenants Corp., 110 A.D.3d 963, 964 (N.Y. App. Div., 2d Dept. 2013); Dennis v. Lakhani, 102 A.D.3d 651, 652 (N.Y. App. Div., 2d Dept. 2013)); see also Amster, 150 A.D.3d at 804 (same) (collecting cases).
In the instant case, Delia testified, inter alia: that when she was about to fall, she did not feel, see or hear anything (see Delia Depo. Tr. 23:18-22); she did not know with which foot she tripped (see id. at 23:23-23:2); although she knew she fell forward, she did not know if one of her feet was still on the asphalt (see id. at 25:6-8); all she remembered was falling, but not the tip of her toe or her foot catching on something (see id. at 25:15-22); and, she had no specific recollection of catching her foot on a "lip" (see id. at 42:16-18; see also id. at 42:11-13 (testifying to having no prior knowledge of a "lip" being in the entryway)). Moreover, Delia's deposition testimony also establishes that she does not know where she fell. For example, when questioned about: the Depo. Photo B photographs, Delia could not identify the columns through which she walked (see id. at 35:16-36:6); the Depo. Photos A & B photographs, Delia could not point to the specific location where she fell (see id. at 36:7-10); the Relevant Photo, Delia indicated two different spots as the possible sights of her fall and testified that she could not specifically say where her foot tripped, although she believed it was the general area depicted in the Photo (see id. at 38:12-39:24; see also id. at 43:10-18). Similarly, Thomas could not identify the cause of his wife's fall or where it occurred. For example, Thomas testified that: he believed Delia's foot touched the front of the "lip" of the sidewalk, but he did not see her foot contact it (see Thomas Depo. Tr. 19:2-15; see also id. at 25:15-21); as to Depo. Photo B depicting the Warehouse entryway, he could not identify where Delia fell (see id. at 21:12-16); and, he could not identify the columns between which Delia fell (see id. at 28:10-13).
A cursory review of the Depo. Photos
Even if that were not so, to the extent the Plaintiffs rely upon the White Mark in the Relevant Photo to identify the location of Delia's Accident, that reliance is unavailing. Other than speculation and conjecture see, e.g., Wendy Aff., ¶7 ("When I got outside to the area where the woman had pointed, I saw what appeared to me to be an area which I discerned was recently cleaned. The area was lighter as if bleach or another cleaning solvent had been applied to clean the concrete." (citing Relevant Photo)), they have presented no admissible evidence that the White Mark is connected to the Accident. Wendy's theory that the White Mark was the result of bleach used to clean Delia's blood after Delia's fall, emanated from a conversation she had with an unidentified Costco employee (see Wendy Depo. 54:1-58:4) who merely pointed to a general area outside the Warehouse entryway vestibule as the place where she had heard that Delia's Accident had occurred (see id. at 18:12-22, 19:9-15). Similarly, when being questioned about the Relevant Photo, Thomas testified:
(Thomas Depo. 24:2-25:14 (emphasis added).) Thus, based on his belief that the White Mark was created with bleach, which he speculates was used to clean up his wife's blood, after the Accident, Thomas surmised where Delia fell. Yet, despite deposing Costco manager Fazio, who was called to the scene of the Accident after Delia fell (see Ex. Q. (Fazio Depo.) at 68:7-70:18), the Plaintiffs have not offered any evidence: that blood was cleaned off the concrete after Delia's fall (see, Delia Depo. 40:15-17 (testifying she did not "see anyone clean up blood from Costco after [the A]ccident"), Thomas Depo. 24:14-16 (testifying to not being present when Delia's blood was cleaned up); cf., Fazio Depo. 85:20-86:9 (regarding the Relevant Photo, testifying to "hav[ing] no idea" whether blood was cleaned off the concrete), 87:10-17 (testifying to having no recollection whether a "maintenance person was directed to clean blood up in the area that [Delia] fell")); or, other than Fazio's general testimony about calling a maintenance person (see id. at 86:20-87:2 (regarding Costco's cleaning protocol for blood removal, testifying that "if blood existed on the concrete" the standard procedure was to "call a maintenance person to clean up the blood")), regarding Costco's cleaning protocol for blood removal; or showing any chemical or solvent having been used on the concrete outside the Warehouse's entryway promptly after Delia's Accident, but before Wendy having taken the Depo. Photos (cf. e.g., Fazio Depo. 111:20-25 (testifying to not knowing what type of solvent Costco would use to clean blood off the sidewalk), 112:10-15 (testifying to not knowing if the White Mark was created with bleach). Conversely, Costco has presented evidence: from Fazio that viewing the Relevant Photo did not "refresh [his] recollection as to where or the vicinity of the area where [Delia] fell" (Fazio Depo. 87:18-24); and, from the Warehouse's Assistant General Manager that: (1) he does not know what caused the White Mark (see Ex. R (O'Connell Aff.), ¶5), (2) on March 7, 2017, he "did not clean blood from the sidewalk nor did [he] request any Costco employees do so" (id. at ¶6), and (3) he is unaware "of any Costco employees cleaning blood from the sidewalk on or after March 7, 2017" (id. at ¶7).
Rather, based upon the Haxtons' testimony, Costco has established its prima facie entitlement to judgment as a matter of law. See Bilska v. Truszkowski, 171 A.D.3d 685, 686 (N.Y. App. Div., 2d Dept. 2019) ("In a slip and fall case, `a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall.'" (quoting Buglione v. Spagnoletti, 123 A.D.3d 867, 867 (N.Y. App. Div., 2d Dept. 2014); further citation omitted)); Stevenson v. CBS Broadcasting, Inc., No. 110806/05, 2011 WL 247005 (N.Y. Sup. Ct., N.Y. Cnty. Jan. 19, 2011) (granting summary judgment in defendants' favor where plaintiff did not know what caused her to fall and "plaintiff [did] not present evidence connecting the alleged defect to her fall, rather than due to her own misstep") (collecting cases); Estrella-Jones, 2016 WL 7243540 (finding, after trial, that plaintiff failed to carry her burden of demonstrating defendant's liability for her injury where, inter alia, plaintiff stepped off a curb onto worn asphalt, tripped and fell, but she did not prove that the condition of the asphalt caused her injury); cf., Tursi v. United Stated, No. 13-cv-4756, 2019 WL 49964750, at *4 (E.D.N.Y. Oct. 7, 2019) (denying summary judgment where plaintiff offered evidence that his sandal slipped under a door saddle "preventing him from raising his foot, [which] was sufficient to permit a reasonable juror to conclude that this opening was the proximate cause of his fall"), and D'Nelson v. Costco Wholesale Corp., No. 03-cv-219, 2006 WL 767866 (E.D.N.Y. Mar. 24, 2006) (denying Costco's summary judgment motion where, inter alia, plaintiff testified that she caught her foot between a metal plate and the warehouse floor causing her to fall to the floor). Plaintiffs are unable to rebut Costco's claims because they fail to identify with certainty where the Accident occurred and have resorted to speculation and conjecture, which is ineffective to defeat summary judgment. See Bilska, 171 A.D.3d at 686-87 (finding defendant met prima facie burden on summary judgment motion "by submitting the plaintiff's deposition transcript which demonstrated, prima facie, that [plaintiff] was unable to identify the cause of her fall without resorting to speculation" (omitting citations)); see also, e.g., Kudrina, 110 A.D.3d at 964 ("To impose liability upon the moving defendants for the plaintiff's injuries, there must be evidence showing the existence of a dangerous or defective condition. . . ."); see also, generally Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 621 (2d Cir. 2016) ("Generally, `speculation by the party resisting the motion will not defeat summary judgment.'") (quoting Kulal v. City of N.Y., 88 F.3d 63, 71 (2d Cir. 1996)).
Even if, arguendo, Delia could identify a known defect that caused the Accident, upon the record presented, any such alleged defect would be trivial as a matter of law. Delia described the height differential in the location where she stepped from the asphalt to the concrete to be slight. (See Delia Depo. 29:21-30:2.) Similarly, Thomas testified that the "lip" in the area where he believed Delia tripped was "about two fingers" in height (Thomas Depo. 27:3-19). Drawing all inferences in the Plaintiffs' favor, these proffered height differentials fail to move beyond the realm of speculation and vague guesses. Further, assuming the Court were to find credence in the height differential approximations offered by Plaintiffs' proffered experts,
Here, no evidence has been put forth as to the width, depth, or irregularity of the purported defect. Nor have Plaintiffs presented any evidence that would show the alleged defect possessed the characteristics of a trap or nuisance. See, e.g., Estrella-Jones, 2016 WL 7243540, at *4-5 (discussing the characteristics of a trap or snare and finding that worn pavement with a shallow depression in an open area "is manifestly unlike the paradigmatic trap or snare"); see also Tesoriero v. Brinckerhoff Park, LLC, 5 N.Y.S.3d 261, 263 (N.Y. App. Div. 2015) ("A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" (quoting Oldham-Powers v. Longwood Cent. Sch. Dist., 997 N.Y.S.2d 687, 688 (N.Y. App. Div. 2014)). Instead, the record evidence concerning the time, place and circumstances of the Accident shows: it occurred at approximately 10:30 a.m. (see Delia Depo. 10:3-5; Thomas Depo. 9:19-22), which is during the daylight; the parking lot and sidewalk were different colors (see Delia Depo. 18:25-19: 10); it was a misty day, but "[n]ot heavy rain" (Delia Depo. 12:9-10), and Delia could not say whether the moisture from the mist caused the asphalt to look darker (id. at 41:19-24);
In sum, because they do not know where, with certainty, Delia fell, any admissible evidence proffered to show the existence of a dangerous or defective condition is ineffective as conjecture or speculation, which is insufficient to defeat a summary judgment motion. Even if that were not so, upon the record presented, any defect in the height differential between the parking lot and the sidewalk was trivial in nature, rendering it nonactionable as a matter of law. Having found Costco is entitled to summary judgment in its favor based upon the record presented, the Court need not consider the Company's "open and obvious" argument or Plaintiffs' opposition thereto. To the extent not explicitly addressed, the Court has considered Plaintiffs' remaining arguments in opposition to the Summary Judgment Motion and finds them to be without merit.
Accordingly, IT IS HEREBY ORDERED that Costco's Summary Judgment Motion is granted; the Clerk of Court is directed to enter judgment in Defendant's favor, dismiss Plaintiffs' Complaint, and then close this case.
IT IS FURTHER ORDERED that the Parties' joint request to adjourn the March 18, 2020 Status Conference (see ECF No. 54) is granted to the extent it is marked off the Court's calendar.
Dated this 16th day of March 2020 at Central Islip, New York.
