Dolores Parietti et al., Appellants,v.Wal-Mart Stores, Inc. et al., Respondents, et al., Defendant.BriefN.Y.September 6, 2017New York Supreme Court APPELLATE DIVISION-SECOND DEPARTMENT REPLY BRIEF FOR DEFENDANTS-APPELLANTS DOLORES PARIETTI and ROBERT PARIETTI, Plaintiffs-Respondents, -against- WAL-MART STORES, INC. and WAL-MART STORES EAST, LP, Defendants-Appellants, -and- MAPLEWOOD ICE CO., INC., Defendant. App. Div. No. 2014-11857 BRODY, O'CONNOR & O'CONNOR, ESQS. Attorneys for Defendants-Appellants Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP 7 Bayview Avenue Northport, New York 11768 (631) 261-7778 Of Counsel: THOMAS M. O’CONNOR PATRICIA A. O'CONNOR TABLE OF CONTENTS PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ERRORS IN THE RESPONDENT’S BRIEF.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 POINT I DEFENDANT’S SHOWING ESTABLISHED WHEN THE AREA WAS LAST INSPECTED RELATIVE TO PLAINTIFF’S ACCIDENT AND, THUS, DEFENDANT MADE ITS PRIMA FACIE SHOWING OF ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 POINT II THE PRESENCE OF A MAT AND ORANGE CONES IN FRONT OF THE ICE MACHINE DID NOT RAISE A TRIABLE ISSUE OF FACT SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 POINT III THERE IS HERE NO ISSUE OF FACT AS TO WHETHER DEFENDANT HAD NOTICE OF A RECURRING CONDITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 POINT IV THE VIDEO OF THE ACCIDENT SCENE DEMONSTRATES THAT THE NON-PARTY WAS UNTRUTHFUL AND SUPPORTS DEFENDANT’S AFFIDAVITS REGARDING THE TIME THAT ITS LAST INSPECTIONS TOOK PLACE RELATIVE TO PLAINTIFF’S FALL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 i POINT V PLAINTIFF FAILED TO SUBMIT ANY EVIDENCE OTHER THAN HEARSAY IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND, THUS, THE DEFENDANT’S MOTION WAS IMPROPERLY DENIED . . . . . . . . . . . . . . . . . . . . 13 POINT VI PLAINTIFF’S REQUEST FOR SANCTIONS IS IMPROPERLY CONTAINED WITHIN HER RESPONDENT’S BRIEF AND IS, IN ANY EVENT, ENTIRELY WITHOUT MERIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ii PRELIMINARY STATEMENT This is an action to recover for personal injuries allegedly suffered in defendant’s store when the plaintiff slipped and fell on water near the store’s ice machine. That the appeal papers are lengthy and detailed does not portend that there is here a triable issue of fact. Once the issues are parsed, it will become readily apparent to this Court that the court below erred in failing to find that the defendant made its prima facie showing of entitlement to summary judgment by the submission of evidence that three of its employees and the plaintiff walked through the accident site within minutes prior to plaintiff’s accident and made no observations of any water on the floor at that time. The court further erred in concluding that there were questions of fact as to whether defendant had notice of the allegedly defective condition based on the plaintiff’s submission of nothing other than hearsay, unauthenticated photographs, and speculation as to the cause of the water upon which the plaintiff allegedly slipped. In this brief, we reply specifically to certain points urged in the plaintiff’s Brief. In choosing to so limit this Reply Brief, we do not in any way retreat from what we have already set forth and argued in much greater detail in our main brief. We continue on this appeal to rely primarily on that brief. -1- ERRORS IN THE RESPONDENT’S BRIEF Before turning to the plaintiff’s legal arguments, defendant must address certain incorrect characterizations of the evidence that are contained in plaintiff’s Counterstatement of Facts. Citing to pages 303 [Gosselink testimony] and 508 [defendant’s trip/fall safety supplement] of the Record, plaintiff begins her reply brief with the assertion that orange cones had been placed by the ice machine in accordance with the defendant’s regular practice to place such cones there when the floor was wet (Respondent’s Br. at p. 3). Said assertion is a misstatement of the evidence before this Court. Ms. Gosselink did not testify that cones were placed at the machine because the floor was wet nor does defendant’s safety supplement instruct employees to place cones at the machine. Rather, Ms. Gosselink testified that cones are placed at the machine to warn customers of the presence of the pallet used to stock the machine (302-303). Specifically, she testified that in order to fill the machine with bags of ice, a pallet containing ice bags is placed in front of the machine and then orange cones are placed around the pallet “so people stay away from [the pallet]” (302-303). She went on to testify that once the machine was stocked and the pallet was removed, the floor would be checked to see if it was wet (303). If it was wet, the floor would be cleaned and the cones would not be removed until such time as the floor was dry from the -2- cleaning (303). As discussed with specificity in the main brief and discussed infra, the defendant’s simple failure to remove the cones after stocking the machine in accordance with its custom and practice does not in any way raise a triable issue of fact as to whether the floor was wet or whether the defendant was on notice of it being wet for a sufficient period of time for defendant to have discovered it and remedied it (Appellant’s Br. at Point IV). As for defendant’s safety supplement, it indicates that caution cones should be placed at “entrances and exits to alert customers of potentially wet surfaces” (508). The area in front of the ice machine is not an entrance or exit. Citing to pages 279-280 [Gosselink testimony] and 209-211 [Lamont testimony], plaintiff then asserts that “water accumulation near the ice machine was a regular occurrence and that water accumulation had been removed that very day, which is why Wal-Mart employees had placed orange cones near the freezer” (Respondent’s Br. at 4) (footnotes omitted). While Ms. Gosselink did testify that she was aware of two occasions where the ice machine in the front of the store leaked, those alleged leaks were subsequent to plaintiff’s accident and, in any event, Ms. Gosselink’s purported knowledge regarding those leaks was second-hand and constituted inadmissible hearsay (Appellant’s Br. at 11-12; 24). As for Ms. Lamont, she testified that an unidentified individual advised her that maintenance had cleaned -3- the front of the store and the area in front of the ice machine just moments prior to the plaintiff’s fall (212). She went on to speculate that the orange cones had been placed there at that time because “it is routine for them that if they have a wet spill, to put up cones” (212). Ms. Lamont’s purported knowledge regarding water on the floor and the reason for the presence of the orange cones was speculative, based on second hand information, and inadmissible hearsay. Moreover, the video submitted to the court established that the information allegedly provided to Ms. Lamont was wholly incorrect (407a). Maintenance did not clean the front of the store or the area in front of the ice machine, nor did it place orange cones at the machine, just moments prior to the plaintiff’s accident. Citing to pages 347, 350 and 393 of the Record, plaintiff next asserts that non- parties observed that the area was wet before the plaintiff’s fall (Respondent’s Br. at p. 4). As for the non-party, Mary Lou Williams, defendant has already discussed, at length, the reasons why her testimony is incredible as a matter of law (Appellant’s Br. at 20-22). Even if credited, however, her testimony establishes nothing more than that she saw water on the floor just seconds prior to plaintiff’s fall - - an insufficient amount of time to charge defendant with constructive notice of the water (Id. at 21- 22). -4- Finally, in a flat-out fabrication of plaintiff’s testimony, the Respondent’s Brief asserts that plaintiff “testified . . . that the water [in which she slipped] was filthy . . . indicating that it had been there for some time” (Respondent’s Br. at 4 [citing R. 128 at 18-19]1). Plaintiff never testified that the water in which she fell was “filthy” and counsel’s assertion that she did so is particularly galling as that false allegation is repeated ad nauseam throughout the Respondent’s Brief in both a misguided effort to raise a triable issue of fact and in support of the assertion that defense counsel should be sanctioned for a frivolous appeal. Instead, plaintiff testified that the water was “clear in color,” was not sticky, and did not appear to have any kind of substance to it (131). While she did claim to have observed scuff marks on the floor following her fall, the purported presence of those scuff marks is doubtful given that they are not depicted in the video of the accident scene nor in the photographs authenticated during depositions (Appellant’s Br. at 30-31). In any event, however, the alleged presence of “scuff marks” on the floor after the plaintiff had already fallen should have been ruled insufficient to defeat defendant’s motion under well-established Second Department case law (Id. at 29-30). 1. Nowhere in the Record on page 128 is there a reference to “filthy” water, as asserted by plaintiff’s counsel. The lines referenced, 18-19, actually read: “I can’t estimate that. I’m not good with that. I’m sorry.” Even presuming that counsel made a mistake and meant to reference page 124, lines 18- 19, nowhere on that page, or anywhere in plaintiff’s deposition, is there testimony that plaintiff fell in “filthy” water. -5- POINT I DEFENDANT’S SHOWING ESTABLISHED WHEN THE AREA WAS LAST INSPECTED RELATIVE TO PLAINTIFF’S ACCIDENT AND, THUS, DEFENDANT MADE ITS PRIMA FACIE SHOWING OF ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW Citing to Birnbaum v. New York Racing Ass’n, Inc., 57 AD3d 598, 599, 869 NYS2d 222, 224 (2d Dept 2008), plaintiff asserts that defendant failed to “affirmatively establish, prima facie, that it did not have notice of the alleged hazardous condition” (Respondent’s Br. at 5). Plaintiff is, of course, incorrect. In Birnbaum, supra, the defendant was denied summary judgment because it offered the court nothing more than a recitation of its “general daily cleaning practices.” Id. at 599. Here, in contrast, this defendant established that each of its employees is charged with the responsibility to “be alert, look for [floor safety] hazards, and correct the hazards quickly;” to “clean-as-you-go;” to “[w]atch for and correct potential [floor safety] hazards when taking different routes to and from lunch and breaks” (512); and to carry a paper towel or pocket pad at all times so any spills on the floor can be addressed immediately (525). Defendant further established that three of its then employees were, in fact, specifically looking for slip/trip/fall hazards as they walked around the store on the day in question, but that they did not see any -6- water on the floor in front of the ice machine in the two minutes and 25 seconds prior to plaintiff’s fall (408-412). (For that matter, the plaintiff herself, who walked thru the accident site only one minute and 31 seconds prior to her fall, made no observations of any water on the floor at that time). In sum, defendant’s showing was entirely sufficient to make out its prima facie entitlement to summary judgment because defendant established when the area in question was last inspected by not one, but three employees relative to the time of plaintiff’s fall. Santos v. 786 Flatbush Food Corp, 89 AD3d 828, 932 NYS2d 525 (2d Dept 2011). Notably absent from the Respondent’s Brief is any reference whatsoever to Warren v. Wal-Mart Stores, Inc., 105 AD3d 732, 963 NYS2d 150 (2d Dept 2013)2, the primary case upon which defendant relies on this appeal. Plaintiff’s failure to address Warren is very telling. In same, this Court held that Wal-Mart establishes its prima facie entitlement to judgment as a matter of law by the submission of an affidavit of an employee, along with surveillance footage, establishing that Wal-Mart did not create the allegedly dangerous condition or have actual or constructive notice of the allegedly dangerous condition prior to the accident. The case at bar is virtually indistinguishable from Warren which compels the conclusion that defendant made out 2. Undoubtedly realizing that Warren v. Wal-Mart, 105 AD3d 732, 963 NYS2d 150 (2d Dept 2013) was the nail in her coffin, plaintiff twice moved to strike any reference to Warren in the Appellant’s Brief. -7- its prima facie entitlement to summary judgment on its motion by the submission of three sworn affidavits and authenticated video establishing when the area in question was last inspected relative to plaintiff’s accident. POINT II THE PRESENCE OF A MAT AND ORANGE CONES IN FRONT OF THE ICE MACHINE DID NOT RAISE A TRIABLE ISSUE OF FACT SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Citing to two First Department cases, Rosado v. Phipps Houses Svcs., Inc., 93 AD3d 597, 940 NYS2d 866 (1st Dept 2012) and Geffs v. City of New York, 105 AD3d 681, 963 NYS2d 657 (1st Dept 2013), plaintiff contends that the mere presence of a mat and cones in the area of the ice machine raises a triable issue of fact sufficient to have defeated defendant’s motion. Plaintiff is, again, incorrect. First, the fact that a mat is always present in front of the ice machine was established during depositions. Thus, its presence on the day of the accident cannot be construed to mean anything, let alone that it was there because of some purported leak from the ice machine. Second, notwithstanding plaintiff’s misplaced reliance on two First Department cases, this Court has held that the presence of a warning sign at an accident site is, “at best, evidence of a general awareness of slippery conditions,” but insufficient to defeat summary judgment. Pluhar v. Town of -8- Southampton, 29 AD3d 975, 816 NYS2d 176 (2d Dept 2006). And, the other departments, including the First Department, concur. See e.g. Seferagic v. Hannaford Bros. Co., 115 AD3d 1230, 982 NYS2d 269 (4th Dept 2014) (wet floor warning cones do not require a finding of notice; order denying summary judgment reversed and complaint dismissed); Snauffer v. 1177 Avenue of the Ams., LP, 78 AD3d 583, 913 NYS2d 26 (1st Dept 2010) (fact that mats and wet floor warning signs were placed out “does not require a finding that defendants had actual notice of the allegedly dangerous condition”;) Tucci v. Stewart’s Ice Cream Co., 296 AD2d 650, 746 NYS2d 60 (3d Dept 2002) (presence of two wet floor warning signs insufficient to defeat defendant’s entitlement to summary judgment as a matter of law; order denying summary judgment reversed and complaint dismissed). Contrary to plaintiff’s position, then, the presence of the orange cones does not “create[], ipso facto, a triable issue of fact” (Respondent’s Br. at 13). The presence of the orange cones at issue cannot be viewed in a vacuum, but must be examined in context with the evidence before this Court. Absent Ms. Lamont’s pure speculation as to the presence of the cones based on a hearsay statement from an unidentified individual, a statement that the video proves was incorrect, there is absolutely no evidence in the record whatsoever that the cones were placed at the machine because of a leak or because of the presence of water on the floor. The record establishes that -9- the cones were already present at the machine at 1:05:51 p.m. when the surveillance video commenced. Dozens and dozens of people, including the plaintiff herself, walk through that area without incident for the next hour.3 In sum, the mere presence of the cones at the time of plaintiff’s accident does not in any way establish or even raise a triable issue of fact as to whether the water upon which she fell came from the machine and existed for such a period of time that the defendant should have discovered it and remedied it prior to her fall. See, e.g. Hartley v. Waldbaum, Inc., 69 AD3d 902, 893 NYS2d 272 (2d Dept 2010) (plaintiff who slipped near display of shrimp on crushed ice failed to proffer any evidence that would tend to show that the water in the display was not draining properly or was leaking onto the floor); Addolorato v. Waldbaums, 57 AD3d 592, 869 NYS2d 218 (2d Dept 2008) (plaintiff failed to submit evidence sufficient to raise triable issue of fact as to whether puddle of water came from nearby beverage refrigerator and whether the defendant had 3. Defendant does not see on the video where another individual is seen “slipping, but not falling” approximately thirty seconds before plaintiff’s fall as alleged in the Respondent’s Brief at p. 14, fn. 10. Even if that did occur, however, a near accident only thirty seconds prior to plaintiff’s fall is insufficient to charge defendant with notice of the water upon the floor. As for the claim that another person walked around the area where plaintiff later slipped (Respondent’s Br. at p. 14, fn. 11), notably absent from the brief is any reference to the exact time stamp on the video where this allegedly occurred. In contrast, Sharron Zbras is observed at 2:02:51 p.m. walking precisely on the spot where plaintiff later falls. Also observed traversing the spot without incident is a woman wearing a blue shirt and holding a cane at 2:03:36; a woman wearing a pocketbook across her body at 2:03:39 p.m.; a woman wearing a white shirt and getting bags of ice out of the machine at 2:04:31 p.m.; two women at 2:04:57 p.m. and, finally, the plaintiff herself at 2:05:20 p.m. Any number of people then move through the area, including a young man holding what appears to be a gallon container of water, before the plaintiff falls at 2:06:47 p.m. -10- constructive notice of the puddle); Acheson v. Shepard, 27 AD3d 596, 811 NYS2d 781 (2d Dept 2006) (mere speculation as to how a condition was created will not suffice to defeat a motion for summary judgment). POINT III THERE IS HERE NO ISSUE OF FACT AS TO WHETHER DEFENDANT HAD NOTICE OF A RECURRING CONDITION Plaintiff claims that there is here an issue of fact as to a recurring condition based on Ms. Gosselink’s testimony that she was advised of two occasions on which the machine had leaked and that the defendant’s floor is examined for wet spots after the machine is loaded with ice. Plaintiff is wrong. Again, Ms. Gosselink’s testimony regarding two leaks was based on statements from unidentified individuals and, in any event, those alleged leaks took place subsequent to plaintiff’s fall.4 As for her testimony regarding the loading of the machine, same established only that the defendant’s floor was cleaned of any wet spots once a pallet containing bags of ice was removed from the scene. Here, there is no evidence whatsoever that the machine was loaded close in time to plaintiff’s 4. Even a cursory review of Ms. Gosselink’s testimony establishes that the referenced leaks were subsequent to plaintiff’s fall and that fact has been pointed out to plaintiff on both the underlying motion and in the defendant’s main brief. It is disturbing that plaintiff nonetheless keeps representing to the Court that Ms. Gosselink’s testimony raises an issue of fact as to prior notice. -11- accident as the video depicts no such loading took place in the hour prior to plaintiff’s fall. Thus, any claim that the water at issue resulted from the loading of the machine is nothing more than a feigned issue. This case does not present a situation where a known defect on the premises was routinely left unattended and caused a recurring hazard. Compare Sweeney v. D&J Vending, Inc., 291 AD2d 443, 737 NYS2d 388 (2d Dept 2002) (evidence established that water often accumulated on floor as the result of a leak or condensation from a vending machine and that defendant had received numerous complaints about same). Defendant was therefore entitled to summary judgment. POINT IV THE VIDEO OF THE ACCIDENT SCENE DEMONSTRATES THAT THE NON-PARTY WAS UNTRUTHFUL AND SUPPORTS DEFENDANT’S AFFIDAVITS REGARDING THE TIME THAT ITS LAST INSPECTIONS TOOK PLACE RELATIVE TO PLAINTIFF’S FALL Whether purposeful or not, plaintiff misconstrues the value of the surveillance video on this appeal. Defendant did not in any way state that the video alone demonstrated the absence of water on the floor. Rather, the video was submitted to establish (1) that the affidavits of the defendant’s former employees regarding the last time that they inspected the accident scene were truthful, (2) that the non-party’s -12- testimony regarding her actions on the day in question was entirely untruthful, and (3) that the claim that the area in front of the machine was cleaned by defendant only moments before the accident was incorrect. Again, reference is made to Warren, supra, where this Court held that the affidavit of defendant’s assistant manager, coupled with video surveillance of the accident scene, established defendant’s entitlement to summary judgment. Here, as in Warren, the affidavits of defendant’s three former employees, coupled with the surveillance of the scene, do the same. POINT V PLAINTIFF FAILED TO SUBMIT ANY EVIDENCE OTHER THAN HEARSAY IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND, THUS, THE DEFENDANT’S MOTION WAS IMPROPERLY DENIED When seeking to have a hearsay statement admitted for the truth of the matter asserted therein, the burden is upon the proponent of the evidence to establish that the statement comes within one of the exceptions to the hearsay rule. Plaintiff did not make that showing on the underlying motion or on this appeal. Instead, plaintiff argues that the hearsay upon which she relies was properly considered in accordance with “other evidence of liability” (Respondent’s Br. at 18). She does not delineate this “other evidence.” -13- It is well settled that hearsay evidence may only be considered in opposition to a motion for summary judgment where it is not the only evidence submitted. King v. North Shore Long Is. Jewish Hosp. at Plainview, 127 AD3d 928, 7 NYS3d 371 (2d Dept 2015) (citations omitted). Here, the plaintiff submitted only hearsay: (1) the hearsay statement of an unidentified employee that allegedly told plaintiff the machine was leaking; (2) the hearsay statement of an unidentified employee that allegedly told Ms. Lamont that the area in front of the machine had been cleaned by maintenance only moments prior to plaintiff’s fall; (3) the hearsay statement of unidentified cashiers that allegedly told Ms. Gosselink that someone came to repair the machine in April of 2012; and (4) the unauthenticated and hearsay photographs of defendant’s store taken at some unidentified time other than the plaintiff’s fall. Since the plaintiff failed to submit any other admissible evidence in opposition to the defendant’s motion, plaintiff failed to raise a triable issue of fact as to whether defendant was on notice, actual or constructive, of the presence of water on its floor prior to her fall. Guanopatin v. Flushing Acquisition Holdings, LLC, 127 AD3d 812, 7 NYS2d 322 (2d Dept 2015). Thus, summary judgment should have been granted to defendant. Wachovsky v. City of New York, 122 AD3d 724, 997 NYS2d 145 (2d Dept 2014) (plaintiff’s testimony that an employee told him that she had previously reported a slippery condition to unnamed custodial staff constituted hearsay and was -14- insufficient, standing alone, to raise a triable issue of fact as to notice). POINT VI PLAINTIFF’S REQUEST FOR SANCTIONS IS IMPROPERLY CONTAINED WITHIN HER RESPONDENT’S BRIEF AND IS, IN ANY EVENT, ENTIRELY WITHOUT MERIT Sanctions are awarded upon motion or upon the court’s own initiative. 22 NYCRR §130-1.1(d). On the underlying motion, the plaintiff moved for sanctions against defendant and its counsel claiming that defendant had failed to disclose the identify of the three former employees who were working on the day of the accident (454-457), a claim that the court found meritless (4 [“These employees were identified in correspondence dated November 22, 2011, a discovery response dated March 19, 2012 and the plaintiff was provided with their last known addresses.”]). Plaintiff continued that defendant’s motion was frivolous because, inter alia, its own evidence shows that the area had been cleaned of water minutes before the plaintiff' s accident . . . warning cones were present and, pursuant to Wal-Mart's own policy and procedure, were to remain in place until the area was completely dry . . . Juan Rivera, the manager who went to the scene of the accident, noted on the accident report that the floor was not dry and, in fact, was wet from bags of ice . . . a mat was in place at the time of the accident . . . Ms. Parietti, Ms. Williams and Mr. Williams all testified that the mat [was] wet at the time of the accident [and] the ice machine had leaked in the past, . . . it had been repaired and maintained by someone other than Wal-Mart, and . . . the -15- defrost/leak issue was not resolved until approximately April of 2012. (453). Defendant responded that the video did not support the claim that the area had been cleaned of water minutes before the plaintiff’s accident; that the court could not permit a jury to speculate that the ice machine was leaking based on nothing more than the mere presence of orange cones; that the defendant’s failure to follow its own procedure and remove the orange cones after it loaded the machine could not serve as a basis to defeat summary judgment; that defendant did not dispute that the floor may have been wet at the time of the accident, but it had established that it was not on notice of that wetness and that the wetness did not exist for such a length of time that defendant should have discovered it and remedied it prior to plaintiff' s accident; that there was always a mat in front of the machine; that plaintiff, Ms. Williams and Mr. Williams never made any contact with the mat that they alleged was wet; and that the ice machine was only 44 days old, never leaked prior to plaintiff's accident, and had never been serviced or repaired prior to plaintiff's accident (645-646). The court below denied the plaintiff’s motion for sanctions (3-5). Plaintiff did not appeal from the denial of her motion for sanctions or move for sanctions before this Court. Instead, she tucked an argument that defense counsel should be sanctioned for a meritless appeal onto the end of her Respondent’s Brief, -16- an improper way in which to seek sanctions. For that reason alone the request should be denied. Moreover, the request for sanctions is entirely baseless. Plaintiff has not and cannot demonstrate that defendant’s appeal is “completely without merit in law,” the standard pursuant to which sanctions may be awarded under §130-1.1. Defendant is not engaged in any “childish plot” (Respondent’s Br. at 22), whatever that means, and the fact that it successfully defends itself by motion and on appeal is not grounds for sanctions. See Saltz v. Wal-Mart, 2012 US Dist Lexis 33448 (SDNY 2012) affd 2013 US App. Lexis 2385 (2d Cir 2013); DeLotch v. Wal-Mart, 2008 US Dist Lexis 47590 (SDNY 2008); Fletcher v. Wal-Mart, 2006 US Dist Lexis 62190 (SDNY 2006); Byrd v. Wal-Mart, 128 AD3d 629, 8 NYS3d 428 (2d Dept 2015); Warren v. Wal-Mart, supra; Burlarley v. Wal-Mart, 75 AD3d 955, 904 NYS2d 826 (3d Dept 2010); Gagliardi v. Wal-Mart, 52 Ad3d 777, 860 NYS2d 207 (2d Dept 2008) and Chetcuti v. Wal-Mart, 42 AD3d 419, 839 NYS2d 551 (2d Dept 2007) by way of example. Finally, defendant has not ignored the record on this appeal (Respondent’s Br. at 22). If anything, it is plaintiff’s counsel that has ignored the record, asserting again and again in the Respondent’s Brief that plaintiff testified that she slipped and fell in filthy water when no such testimony from the plaintiff was ever received. -17- CONCLUSION For all the reasons set forth above, the request for sanctions should be denied, the lower court’s order should be reversed, and the plaintiff’s complaint should be dismissed, together with such other, further and different relief as may be just and equitable. Dated: Northport, New York July 2, 2015 Yours, etc. BRODY, O'CONNOR & O'CONNOR, ESQS. Attorneys for Defendant WAL-MART STORES EAST, LP By: _______________________________ PATRICIA A. O’CONNOR Of Counsel: Thomas M. O’Connor Patricia A. O’Connor -18- CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR 670.10.3(f) that the foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of Typeface: Times New Roman Point Size: 14 pt Line Spacing: Double spaced The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 4322. Dated: July 2, 2015 ______________________________________ PATRICIA A. O’CONNOR -19-