Summary
concluding that plaintiff had not proven actual notice where plaintiff "failed to introduce any evidence to show that any of defendant's employees noticed the alleged puddle [that purportedly caused plaintiff to fall] or received any complaints regarding it"
Summary of this case from Looney v. Macy's Inc.Opinion
05 Civ. 7639 (CM)(LMS).
July 14, 2006
DECISION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION TO ADD A NEW PARTY
Introduction
Plaintiff Alexandria Greco was a 21-year old resident of Bronxville, New York. On June 11, 2003, Greco and her mother visited a coffee shop operated by defendant Starbucks. Because it was raining, Greco hurried from her mother's car to the Starbucks entrance. As soon as she entered the store, she slipped and fell, injuring herself in the process.
On June 21, 2005, Greco filed a complaint in the Supreme Court of the State of New York, County of Westchester, naming Starbucks as the sole defendant and alleging that Starbucks' negligence was the proximate cause of her injuries. On August 29, 2005, Starbucks filed a Notice of Removal, removing the case to this Court.
Starbucks now moves for summary judgment. Greco cross-moves, seeking to join an additional defendant, 29 Park Place LLC, the owner of the building occupied by the Bronxville Starbucks. In addition, Greco seeks to reopen discovery to add Vincent Ettari as an expert witness in the field of engineering.
For the reasons stated below, Starbucks' motion is denied, Greco's motion to add a new party is granted, and this matter is remanded to state court.
Facts
On June 11, 2003, at about 3:30 p.m., plaintiff Alexandria Greco ("Alexandria") and her mother, Elizabeth Greco ("Elizabeth"), drove from Candy's Hair Zone, a hair salon in Eastchester, New York, to a Starbucks coffee shop in Bronxville, New York that they frequented. Deposition of Alexandria Greco ("Greco") at 7-8, 17. According to Alexandria, it began to rain about five minutes before they got to Starbucks; prior to that, it had not rained at all that day. Id. at 7-8. Elizabeth parked her car about twenty feet from the store's entrance and Alexandria got out. Id. at 9-11. It was raining heavily, so Alexandria walked to the store "faster than normal." Id. at 11. She was carrying a shoulder bag and wearing sandals with rubber soles and no socks. She had neither an umbrella nor anything else to cover her head with. Id. at 11-13.
Alexandria entered Starbucks through the entrance closest to the car, a single door located at the front of the store. Id. at 12. Alexandria opened the door with her right hand and stepped inside with her left foot. Immediately, she slipped and fell backwards, landing on her left hip and elbow. Id. at 13-15. After falling, Alexandria noticed a puddle on the floor near where she had slipped. Id. at 17.
Defendant's version of events is slightly different. Mark Rodriguez, the store's manager, was working in the backroom at the time, while a manager in training, Matt Ernst, and a shift supervisor, Jason Tucker, covered the store's floor. Deposition of Mark Rodriguez ("Rodriguez") at 14-15. Almost as soon as he noticed that it had begun raining, Rodriguez was informed by Ernst that a customer had fallen. Id. at 20. Rodriguez went to the front of the store to assist Alexandria, who was standing by the single-door entrance. Rodriguez saw no puddles, but noticed "a footmark like someone took their foot and slid." Id. at 21. According to Rodriguez, it had only been raining for "30 seconds, maybe" before Alexandria slipped and fell. Id. at 20.
At the time that Alexandria fell, there were no mats on the floor in front of the door she had entered. Defendant's Rule 56.1 Statement ("Defendant's 56.1") at ¶ 19. The store's floor was constructed of ceramic tile. Rodriguez at 11-12. Starbucks had a policy that mats should be laid down by all entrances on rainy days. While he did not tell either Ernst or Tucker to put out mats on that day, Rodriguez felt that they would have known about the policy, because it was included as part of the training which they had received. Id. at 16-17.
As a result of her fall, Alexandria suffered pain, predominantly on the left side of her body, and including her back, neck, hip, knee, and hand. In addition, her injuries allegedly resulted in approximately $700 in lost earnings from jobs at the Manhattanville College Admissions Office and a Lord and Taylor store in Eastchester, New York. Plaintiff's Response to First Set of Interrogatories ("Interrogatories") annexed as "Exhibit P" to the Declaration of George N. Tompkins dated May 2, 2006 ("Tompkins I") at ¶¶ 9-16.
Procedural History
Alexandria brought suit against Starbucks on June 21, 2005, in the Supreme Court of the State of New York for the County of Westchester, seeking damages for injuries suffered as a result of Starbucks' negligence. On August 29, 2005, Starbucks removed the case to this Court. On December 15, 2005, the parties consented to a Consent Scheduling Order. In that document, they agreed to not join additional parties after December 20, 2005 or amend the pleadings after February 28, 2006, as well as to complete all discovery by April 30, 2006. See Consent Scheduling Order ("Scheduling Order") annexed as "Exhibit A" to Declaration of George N. Tompkins dated May 24, 2006 ("Tompkins II").
Discussion
Summary Judgment Standard of Review
Under Federal Rule of Civil Procedure 56(c), a court will grant summary judgment if the evidence offered shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986). Furthermore, "`the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.' When no such showing is made, `[t]he moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she had the burden of proof.'" Lujan v. National Wildlife Federation, 497 U.S. 871, 884, 110 S. Ct. 3177, 3187 (1990) (citing Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2552) (internal citations omitted). On a motion for summary judgment, the court views the record in the light most favorable to the non-moving party and resolves all ambiguities and draws all reasonable inferences against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994 (1962);Donahue v. Windsor Locks Bd. of Fire Commn'rs, 834 F.2d 54, 57 (2d Cir. 1987). Granting of summary judgment is appropriate "where the nonmovant's evidence is merely colorable, conclusory, speculative, or not significantly probative." Travelers Ins. Co. v. Broadway West Street Assoc's., 164 F.R.D. 154, 160 (S.D.N.Y. 1995) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510).
Defendant's Motion for Summary Judgment
For the reasons set forth below, Defendant's Motion for Summary Judgment is denied.
Under New York law, to establish a prima facie claim of negligence against a property owner stemming from a defective condition on the property, a plaintiff must show that the owner either created the condition or that he had actual or constructive notice of it. Gluskin v. National R.R. Passenger Corp., 1994 U.S. Dist. LEXIS 8593 (S.D.N.Y. 1994); see also Tuthill v. United States, 270 F. Supp. 2d 395, 400 (S.D.N.Y. 2003) (citing Voss v. D C Parkway, 299 A.D.2d 346 (2d Dept. 2002)). Here, the defective condition referred to by plaintiff is the slippery condition of the ceramic tiled floor on rainy days. Declaration of M. Sean Duffy ("Duffy") ¶¶ 14-15.
Plaintiff does not claim that defendant created the defect. Nor does plaintiff prove actual notice of the specific condition because she has failed to introduce any evidence to show that any of defendant's employees noticed the alleged puddle or received any complaints regarding it. See Byrd v. Church of Christ Uniting, 192 A.D.2d 967, 969, 597 N.Y.S.2d 211, 212 (3d Dept. 1993); Anderson v. Cent. Valley Realty Co., 300 A.D.2d 422, 423, 751 N.Y.S.2d 586, 588 (2d Dept. 2002).
However, a genuine issue of fact exists as to whether defendant had constructive notice of the condition which led plaintiff to slip.
In a slip-and-fall case, a plaintiff must show that the alleged condition was visible and apparent, and that it existed for a sufficient period of time before the accident to allow defendant to fix it. Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 646 (1986).
Plaintiff contends that it had been raining for at least five minutes when she entered the Starbucks and that there was a "puddle" of water on the floor after she fell. Greco at 17. Rodriguez, on the other hand, said it had been raining for only a few seconds, and he noticed only a wet footprint at the scene. Rodriguez at 21. As a matter of law, the evidence more favorable to it does not permit an inference that defendant had "actual notice" of the hazardous condition. Periods of time longer than five minutes have been held insufficient to prove that a hazardous condition was visible and apparent long enough for defendant to remedy the situation. See e.g., Stoerzinger v. Big V Supermarkets, Inc., 188 A.D.2d 790, 591 NY.S.2d 257 (3d Dept. 1992); Hilsman v. Sarwill Assoc., L.P., 13 a.d.3D 692, 786 N.Y.S.2d 225 (3d Dept. 2004).
However, the New York courts have further held that a defendant may have constructive notice of a hazardous condition if it had actual knowledge of a recurring problem in the area where the accident occurred. Tuthill, 270 F. Supp. 2d at 400 (citingHirschman v. City of New York, 193 A.D.2d 581, 582, 597 N.Y.S.2d 154, 154 (1993)).
Here, plaintiff contends that defendant had actual notice of a recurring problem regarding slippery floors in the area where plaintiff fell. Starbucks had a policy to place mats by the building's doors on rainy days. Rodriguez at 16-17. A jury "could infer" that defendant's policy indicates an awareness that the floor became slippery when wet, and that defendant had actual knowledge that mats were important to ensure the safety of those crossing the floor. Tuthill, 270 F. Supp. 2d at 400. Thus, while there is no issue about actual notice of the puddle, a genuine question of fact exists about whether defendant had actual knowledge of a recurring problem that could have been remedied simply by the placing of mats on the floor by the front entrance.
Plaintiff's Cross-Motions
In response to defendant's motion for summary judgment, plaintiff moves to add a new party and to re-open discovery in order to allow the use of Vincent Ettari as an expert witness in the field of engineering. For the reasons set forth below, plaintiff's motion to add an additional party is granted. This means that I must remand the matter to the New York State Supreme Court. The judge there will deal with any discovery disputes.
1. Motion to Add a New Party
According to plaintiff's response papers, an action against 29 Park Place has been commenced by plaintiff in state court. Plaintiff writes that, because the building's exterior was renovated by Starbucks, it will likely be brought into that state action as a third-party defendant. Thus, including 29 Park Place in the instant action, it is claimed, will save the parties trouble should 29 Park Place implead Starbucks in the state court action.
However, because 29 Park Place is a New York entity, and plaintiff is a New York resident, permitting joinder would destroy diversity and require a remand to state court. The question confronting this Court, therefore, is whether to add 29 Park Place as a party to this action, thereby destroying diversity jurisdiction, or to deny plaintiff's motion, which would ensure multiplicitous litigation and give rise to the prospect of inconsistent judgements. The answer is clear.
In its moving papers, plaintiff failed to note that adding 29 Park Place as a party to this action would destroy diversity. Only after this Court contacted counsel was it made clear that 29 Park Place is a New York State limited liability company. Because 29 Park Place is a New York entity, and plaintiff is a New York resident, joining 29 Park Place in the instant action would require this Court to remand the case back to state court. See 28 U.S.C. § 1447(e).
A federal district court may exercise subject matter jurisdiction over a civil cause of action alleging only state law claims if the action arises under the court's diversity jurisdiction. See 28 U.S.C. § 1332(a)(1). Federal courts have diversity jurisdiction in cases that are between citizens of different states, and in which the jurisdictional amount is met. For a district court to have diversity jurisdiction under the rule of "complete diversity," no plaintiff can share the same state citizenship with any defendant. See Strawbridge v. Curtiss, 7 U.S. 267 (1806).
According to federal law, it is within the district court's discretion whether to allow joinder of an additional defendant after the case has already been removed to federal court. "If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to State court." 28 U.S.C. § 1447(e).
In this Circuit, district courts "will only permit joinder under such circumstances if it is consistent with the principles of fundamental fairness." Id. (citing Rodriguez v. Abbott Laboratories, 1993 U.S. Dist. LEXIS 15376 at **9 (S.D.N.Y. 1993)). Further, the Court must "carefully scrutinize the basis for joinder where joinder will defeat diversity jurisdiction and mandate the court to remand the action to state court, pursuant to 28 U.S.C. § 1447(e)."Rodriguez, 1993 U.S. Dist. LEXIS 15376 at **10.
In determining whether joinder and remand would be fundamentally fair, the Court balances a number of factors: (1) any delay in seeking joinder, and the reason for that delay; (2) any resulting prejudice to defendant; (3) the likelihood of multiple litigation; and (4) plaintiff's motivation for seeking joinder. Hunt, 2004 U.S. Dist. LEXIS 3896 at *5; see also In re: Reuzlin Products Liability Litig., 2002 WL 31466455 (S.D.N.Y. 2002).
Taking each of the above factors into account, I regretfully conclude that the interests of justice overwhelmingly point toward allowing joinder in this case. Plaintiff offers no good reason for why she delayed bringing suit against 29 Park Place, and that alone would ordinarily lead me to deny joinder. But, if this action proceeds against Starbucks here, and against 29 Park Place in the New York State Supreme Court, the multiplicity of litigation could give rise to inconsistent judgments. "Courts in this Circuit have repeatedly held that avoidance of multiple litigation points toward joinder of a party even if joinder will defeat diversity." Rosenthal v. Life Fitness Co., 977 F. Supp. 597, 600 (E.D.N.Y. 1997). The risk of two trials and inconsistent judgements outweighs defendant's otherwise valid contentions that plaintiff's unjustified delay in seeking joinder, and joinder's potentially prejudicial effect on defendant, are grounds for denying plaintiff's motion.
I am assuming, of course, that the two state court actions will be consolidated.
For the foregoing reasons, justice requires that plaintiff be allowed to add 29 Park Place as a defendant in this matter. Because 29 Park Place's addition destroys diversity jurisdiction, the case will have to be remanded under 28 U.S.C. § 1447(e). will have to be remanded under 28 U.S.C. § 1447(e).
2. Motion to Open Discovery Permitting Use of Expert Witness
Because this matter is hereby remanded to state court, this Court declines, without prejudice, to rule on plaintiff's motion to re-open discovery to allow for the use of Vincent Ettari as an expert witness. Plaintiff is free to raise this, or any other, issue before the state court.
Conclusion
For the reasons stated above, defendant's motion for summary judgment on plaintiff's claim of negligence is denied. Plaintiff's motion to add an additional party is granted. Plaintiff's motion to re-open discovery is remanded to state court.
This Court hereby remands this matter to Supreme Court of the State of New York, County of Westchester.
This constitutes the decision and order of the Court.