Contreras v. Wal-Mart Stores East, LP

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------------------x

JOAN CONTRERAS,

Plaintiff,

Case No.: 18-cv-3589 (SJF)(ST)

v. ORDER ADOPTING

REPORT &

RECOMMENDATION

WAL-MART STORES EAST, LP and

GREEN ACRES MALL, LLC,

FILED

GEORGE MARAGOS, CLERK

Defendants. 3/24/2020 1  :50 pm

-----------------------------------------------------------------x U.S. DISTRICT COURT

FEUERSTEIN, Senior District Judge: EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

I. Introduction

Plaintiff Joan Contreras (“Plaintiff”) commenced this action against Defendant Wal-Mart

Stores East, LP (hereafter, “WalMart”, “the Company” or “Defendant) claiming that because of

WalMart’s negligence in maintaining the vestibule area (hereafter, Vestibule”) of the WalMart

Super Center at 77 Green Acres Road South in Valley Stream, New York (hereafter, the

“Store”), Plaintiff slipped, fell, and sustained bodily injuries. (See Complaint, ECF No. 1 at 6-

14.1) WalMart denied Plaintiff’s allegations, raising as an affirmative defense Plaintiff’s

culpable conduct, contributory negligence, and/or assumption of risk (see Answer (ECF No. 1 at

19-24)). Thereafter, it moved for summary judgment, pursuant to Rule 56 of the Federal Rules

of Civil Procedure (hereafter, the “Summary Judgment Motion”) (see ECF No. 20; see also

Support Memo. (ECF No. 23)), asserting it neither created nor had notice of the alleged

condition in the Vestibule, which Motion the Plaintiff opposed (hereafter, “Opposition” or

1 Plaintiff brought her action in state court, which Defendant removed to this Court on the basis

of diversity jurisdiction. (See ECF No. 1 at 1-3, Notice of Removal.)

“Opp’n”) (see ECF No. 26). The Summary Judgment Motion was referred to then-Magistrate

Gary R. Brown2 for a Report and Recommendation (see July 9, 2019 electronic Order of

Referral).

Presently before the Court is the Magistrate Judge’s November 12, 2019 Report and

Recommendation (hereafter, “Report”) recommending that the Summary Judgment Motion be

denied. (See Report (ECF No. 293).) WalMart objects to the Report (hereafter, “Objection”)

(see ECF No. 30), to which the Plaintiff has responded (hereafter, “Response”) (see ECF No.

31). For the reasons that follow, the Court overrules WalMart’s objections and adopts

Magistrate Judge Brown’s Report in its entirety.

II. Background

The Company raised no specific objections to the Magistrate Judge’s factual findings,

which were delineated in four subsections of the Report’s “FACTUAL BACKGROUND”, to

wit: “1. The Incident” describing Plaintiff’s fall on May 25, 2017 at approximately 3:53 p.m.

(hereafter, the “Accident”), walking through a large puddle of water on the floor of the Store’s

Vestibule (hereafter, the “Alleged Dangerous Condition”) (see Report at 2-3); “2. Rain” finding,

inter alia, that “[t]he parties agree that the water in the [V]estibule was caused by rainwater

tracked in from the outside” of the Store (see id. at 3); “3. Wal-Mart’s Protocol” discussing the

testimony of Katrina Jones (“Jones”), one of the Store’s assistant managers, “regarding the

2 In December 2019, after the issuance of this Report, Judge Brown was elevated to District

Judge; however, for convenience, herein he will continue to be referred to as “Magistrate Judge

Brown” or the “Magistrate Judge”.

3 See also Contreras v. Wal-Mart Stores East, LP, No. 18-cv-3589, 2019 WL 7599888

(E.D.N.Y. Nov. 12, 2019). For convenience, when citing to the Report, the Court will use the

pagination provided within the docketed Report.

[S]tore’s maintenance protocol for the [V]estibule,” which included “that the floor of the

[V]estibule should be inspected every fifteen to twenty minutes” and “that every Wal-Mart

employee has an obligation to identify wet areas on the floor, to guard them, [and to] clean or

report the water to maintenance” (id. at 4); and, “4. Video Surveillance” describing Plaintiff’s

reliance on a surveillance video of the Store’s entrance and location of the Accident (hereafter,

the “Video”), which began recording at 2:59 p.m., approximately an hour before the Accident,

and depicts, inter alia, various Company employees: adjusting floor mats in the Vestibule;

moving shopping cart into and out of the Vestibule; walking through the Vestibule (with one

such employee being an assistant manager); “st[anding] near the exit side inside the [S]tore,

separated from the [V]estibule by clear sliding doors”; and, after the Accident, “clean[ing] the

area where [P]laintiff fell with a squeegee” and then mopping the same area. (Id. at 4-6.)

For the reasons that will be discussed (see infra at pp.15-17), to the extent the Defendant

objects to the Magistrate Judge’s consideration of Jones’s testimony regarding the Store’s

maintenance protocol (see Objection at 8) as “appli[cable] to the situation at issue” (Report at 4)

is overruled. The FACTUAL BACKGROUND of the Report is adopted in its entirety and

incorporated herein by reference, with the Court assuming the Parties’ familiarity therewith.4

Further, hearing no objection to the Report’s PROCEDURAL BACKGROUND (see id. at 1),

and finding it accurately represents the procedural history of the case, it is also adopted in its

entirety and incorporated herein by reference.

4 Further, terms of art defined in the Report are incorporated and used herein, with the parties’

familiarity therewith assumed.

III. Applicable Standards

A. Report and Recommendation Standard of Review

Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct

proceedings of dispositive pretrial matters without the consent of the parties. See Fed. R. Civ. P.

72(b). Any portion of a report and recommendation on dispositive matters to which a timely

objection has been made is reviewed de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

However, “when a party makes only conclusory or general objections, or simply reiterates the

original arguments, the Court will review the report strictly for clear error.” Frankel v. City of

N.Y., Nos. 06-cv-5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009); see also

Butto v. Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) (“In a case where a party makes

only conclusory or general objections, or simply reiterates his original arguments, the Court

reviews the Report and Recommendation only for clear error.” (quotations and citation omitted)).

The Court is not required to review the factual findings or legal conclusions of the magistrate

judge as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.

Ct. 466, 88 L. Ed.2d 435 (1985). Whether or not proper objections have been filed, the district

judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or

recommendations. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

B. Motion for Summary Judgment Standard

“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).

In slip and fall cases brought in federal courts pursuant to diversity jurisdiction, but

where New York state substantive law applies, where a defendant moves for summary judgment,

it may point to the absence of evidence that it caused or had notice of the hazard and thereby

shift the burden to the nonmovant plaintiff to create an issue for trial through specific factual

assertions. See Doona v. OneSource Holdings, Inc., 680 F. Supp.2d 394, 400-01 (E.D.N.Y.

2010). “In other words, in federal court the absence of evidence at the summary judgment stage

redounds to the detriment of the plaintiff, not the defendant.” Santora v. Costco Wholesale

Corp., No. 17-cv-4415, 2018 WL 5886442, at *3 (S.D.N.Y. Nov. 8, 2018).

C. Negligence Under New York State Law5

Under New York law, a plaintiff asserting a negligence

claim 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 quotation marks omitted). In the context of

premises liability and slip and fall cases, “the plaintiff must

demonstrate that the landowner created the condition that caused

the injury, or that the landowner had actual or constructive notice

of the condition.” Gonzalez v. Wal-Mart Stores, Inc., 299 F.

Supp.2d 188, 192 (S.D.N.Y. 2004); see Gorecki v. Painted Pony

Championship Rodeo, Inc., 6 F. App’x 103, 105 (2d Cir. 2001)

(summary order) (proving breach of duty requires showing

existence of dangerous condition and that defendant either created

it or had actual or constructive notice of it).

Santora, 2018 WL 5886442, at *3; 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

5 The parties agree that “New York law applies to this diversity action.” (Cf., Pl.’s Opp’n (ECF

No. 26) at 2, with Def.’s Support Memo. (ECF No.23) at 3.)

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).

Where a plaintiff has presented evidence that a dangerous

condition exists on the property, the burden shifts to the landowner

to demonstrate that he or she exercised reasonable care under the

circumstances to remedy the condition and to make the property

safe, based on such factors as the likelihood of injury to those

entering the property and the burden of avoiding the risk.

Evidence that the dangerous condition was open and obvious

cannot relieve the landowner of this burden. Indeed, to do so

would lead to the absurd result that landowners would be least

likely to be held liable for failing to protect persons using their

property from foreseeable injuries where the hazards were the most

blatant.

Cupo v. Karfunkel, 1 A.D.3d 48, 52 (N.Y. App., 2d Dept. Oct. 27, 2003)(holding that “proof that

a dangerous condition is open and obvious does not preclude a finding of liability against a

landowner for the failure to maintain the property in a safe condition but is relevant to the issue

of the plaintiff’s comparative negligence”).

IV. Discussion

A. Magistrate Judge Brown’s Report & Recommendation

Acknowledging that the parties dispute whether Plaintiff can establish WalMart having

created the dangerous condition or having actual or constructive notice of the dangerous

condition, Magistrate Judge Brown quickly eliminated the creation argument (see Report at 7

(“Wal-Mart indisputably did not create the dangerous condition that caused [P]laintiff’s fall.”

(Report at 7)), stating the only issue is as to notice, i.e., “whether [P]laintiff can establish that

Wal-Mart had actual or constructive notice of the condition.” (Id.) As to actual notice, while

recognizing it may be inferred with circumstantial evidence (see id. at 8), the Magistrate Judge

found such notice could not be inferred in this instance, because: even though the Video showed

three WalMart employees walked through the Vestibule within the approximate 50 minutes

preceding the Accident, Plaintiff failed to submit any testimony from them about their awareness

of water in the Vestibule; there was no dispute that, prior to the Accident, WalMart had not

received any reports or complaints about water in the Vestibule; and, Plaintiff conceded that no

WalMart employee had cleaned the Vestibule before the Accident. (See id. at 9.) However, as

to constructive notice, “[w]here evidence that a dangerous condition ‘had been present for a

substantial period of time . . . together with testimony that the area where plaintiff fell is subject

to regular inspection and cleaning,’” a finding of such notice may be had. (Id. at 10 (quoting

Chong v. Target Corp., 14-cv-547, 2015 WL 2250250, at *3 (E.D.N.Y. May 12, 2015)).) Since

Plaintiff presented the following evidence, the Magistrate Judge found constructive notice could

be inferred, thereby impeding the granting of summary judgment: (1) as Jones testified, the

Vestibule was “subject to constant inspection and cleaning” (id. at 11); (2) as depicted in the

Video: less than one hour before the Accident, two Company employees are adjusting floor mats

in the Vestibule (see id. at 12); approximately one-half-hour before the Accident, a Company

employee pulls a shopping cart from the Vestibule into the Store (see id.); the Company

“Greeter”6 is seen, through the sliding glass separating the Store interior from the Vestibule,

standing just inside the Store interior (see id.); and, three different Company employees walk

through the Vestibule a few minutes before the Accident (see id.). Moreover, upon the record

presented, the Magistrate Judge concluded that a reasonable inference could be made that there

was water on the Vestibule floor given: the undisputed fact that it had rained for nearly twelve

hours prior to the Accident (see id.); the submission of a certified weather report regarding the

6 The Greeter is referred to as a “happy to help” employee in the Report. (See Report at 5.)

falling of approximately a half inch of rain within the Store’s vicinity over a 12-hour period just

preceding the Accident (see id.); the Video evidence depicting: several customers with umbrellas

walking into the Vestibule within the hour preceding the Accident (see id.), the area where

Plaintiff fell in the Vestibule not being mopped before the Accident (see id.), and another

customer falling in the Vestibule a few minutes before the Accident (see id.). Given the

cumulative effect of these events and “construing the facts in the light most favorable to the

[P]laintiff,” Magistrate Judge Brown found “a reasonable jury could conclude that [D]efendant

had constructive notice of the condition that caused [P]laintiff’s fall.” (Id. at 13.) In other

words, Plaintiff has adduced evidence upon which a jury could reasonably find for her, enabling

her to defeat the Summary Judgment Motion.

B. The Defendant’s Objection

Not unsurprisingly, WalMart does not object to Magistrate Judge Brown’s conclusion

that it did not create the Alleged Dangerous Condition that caused Plaintiff’s fall. Rather,

Defendant takes issue with the Magistrate Judge not finding, as a matter of law, that because the

water on the Vestibule floor was open and obvious and not inherently dangerous, WalMart was

alleviated of any duty to warn. (See Objection at 1-2 (generally); see also id. at 2 (discussing

“open and obvious” prong of analysis), at 3 (discussing “not inherently dangerous” prong of

analysis).) Defendant further contends that the Magistrate Judge’s conclusion that the water was

on the Vestibule floor for 50 minutes, is “improper in that it is drawing factual conclusions

instead of merely identifying issues”. (Id. at 3.) It argues that, based upon the record evidence,

Plaintiff “cannot establish constructive notice because the ‘telltale signs’ of a long-standing

condition are here absent.” (Id. at 4; see also id. at 5 (arguing “there is no way to tell when the

water came to be upon the floor” making “[t]he R&R’s suggestion that it came to be on the floor

because of . . . umbrellas . . . or because of being tracked-in on the soles of customers’ shoes[]

mere minutes before plaintiff’s fall . . . nothing more than impermissible speculation”).)

Walmart further objects to the Report asserting that the Magistrate Judge improperly

inferred constructive notice upon WalMart by utilizing the Company’s internal regulations

regarding store patrols, which is contrary to New York state law. (See id. at 6-8.) In that respect,

it claims that Magistrate Judge Brown was wrong to rely upon Jones’s testimony regarding

WalMart’s floor maintenance protocol and to find that the protocol should be a factor considered

in determining whether the Company had constructive notice of the Alleged Dangerous

Condition, as contrary to New York law. (See Objection at 7-8 (citing Byrd v. Walmart, Inc.,

128 A.D.3d 629, 630-31 (N.Y. App. 2d Dept. 2015)).) Finally, it claims the Magistrate Judge

erred by relying upon Chong and Spinner v. 1725 York Owners Corp., 56 A.D.3d 324, 324 (N.Y.

App. Div. 1st Dept. 2008) in concluding there are material disputed facts precluding

recommending the awarding of summary judgment, primarily arguing the cases’

distinguishabilities, to wit: compared with Chong, here, the Video does not depict persons

walking “gingerly and carefully” in the Vestibule within the half-hour preceding the Accident

(see Objection at 8-9); and, compared with Spinner, in this case, it had ceased raining before the

Accident and the Greeter had his back to the Vestibule (see id. at 9-10 (further noting that any

reliance upon the use of floor mats to establish constructive notice of a dangerous condition is no

longer good law in New York)).

C. The Plaintiff’s Response

In response, the Defendants state:

Defendant puts forth no meaningful challenge to the reasoning of

Judge Brown or the undisputed facts upon which his decision was

based. Indeed, [D]efendant does not even deny that the water is

what caused [P]laitniff’s fall or assert that the floor was in fact dry.

Defendant points to no legal or factual error that would require this

Court to second guess the careful work of Judge Brown and

engage in a de novo review.

(Response at 3.) More specifically, Plaintiff takes issue with Defendant’s objection based on its

“open and obvious” argument on several grounds: first, it is inconsistent with WalMart’s moving

argument “that there was no evidence that Walmart employees were ever aware that the floor

was wet” (Response at 4); second, Defendant is raising this argument for the first time in its

Objection, failing to put it forth in its moving papers (see id. at 4-5, 6); and, third, the Company’s

“open and obvious” argument “is premised upon a misstatement of New York Law.” (Id. at 5

(relying upon Cupo as the case articulating “the controlling legal standard”).) Moreover,

Plaintiff would have this Court reject WalMart’s contention that the Magistrate Judge reached a

conclusion as to how long water existed on the Vestibule floor, stating:

Judge Brown did not find that “water existed on the floor for 53

minutes before the plaintiff’s fall,” as [D]efendant contends.

Rather, after performing a careful review of the evidence and

construing the evidence in the light most favorable to the

[P]laintiff, Judge Brown held that a “reasonable jury can infer that

the [V]estibule floor where [P]laintiff fell was wet for

approximately fifty minutes, before [P]laintiff’s fall, which is

longer than the thirty minutes in Chong and the forty minutes in

Spinner.”

(Id. at 7 (quoting Report at 12-13); see also id. at 8 (listing undisputed evidence supporting

Magistrate Judge’s recommendation).)

Further, Plaintiff highlights that Magistrate Judge Brown’s finding a disputed question of

fact as to constructive notice did not, as WalMart suggests, rest exclusively upon the Company’s

internal floor maintenance protocols because, while “Judge Brown does reference the

[D]efendant’s policy of regular inspections at fifteen to twenty-minute intervals, he also points to

numerous other pieces of evidence demonstrating that Walmart employees were present in the

[V]estibule before the [A]ccident.” (Id. at 10 (listing additional evidence of WalMart

employees’ presence (citing Report at 11-12)).) She contends this is consistent with “New York

courts [which] have repeatedly found that, where defendants employees are present in the area of

plaintiff’s accident, constructive notice of a dangerous condition can be inferred.” (Id. at 10-11

(collecting cases).)

Finally, Plaintiff asserts that the Company, again, misstates the contents of Magistrate

Judge Brown’s Report when it claims the Magistrate Judge improperly relied upon Chong and

Spinner, countering:

a plain reading of the Report . . . shows that Judge Brown reached

his decision primarily by focusing on the facts of this case and

concluded correctly that a triable issue of fact existed as to the

issue of constructive notice. Any reference to Chong and Spinner

was simply for the proposition that ‘constructive notice can be

inferred by circumstantial evidence,’ a statement that the

[D]efendant does not dispute.

(Id. at 11 (quoting Report at 11).)

D. The Defendant’s Reply

Walmart filed a letter in reply to Plaintiff’s Response asking this Court to use its

discretion and consider its “open and obvious” argument asserting that since Magistrate Judge

Brown “concluded that [P]laintiff saw the water upon which she slipped before she ever slipped

upon it, it was proper for [WalMart] to argue that the water was open and obvious to the

[P]laintiff as a matter of law . . . .” (ECF No. 32 (quoting Amadasu v. Ngati, No. 05-cv-2585,

2012 WL 3930386, at *4 (E.D.N.Y. Sept. 9, 2012); further citation omitted).)

E. The Court’s Consideration of Defendant’s Objections

Having carefully reviewed the Company’s Objection, the Court finds no objections were

raised as to the Magistrate’s recommendations that “Wal-Mart indisputably did not create the

dangerous condition that caused [P]laintiff’s fall” (Report at 7) or that WalMart “did not, in fact,

have actual knowledge of the dangerous condition.” (Id. at 9.) Hence, no review of these

recommendations is required. See Thomas, 474 U.S. at 150. Rather, WalMart’s objections are

directed at the Report’s recommendation regarding constructive notice; however, an assessment

of them shows they are no more than conclusory and general, warranting review of the Report

for clear error. See, e.g., Butto, 290 F.R.D. at 379. However, in an abundance of caution, the

Court conducted a de novo review of the record as it relates to the Magistrate Judge’s

recommendation regarding constructive notice. Under either standard of review, no error is

found.

The Court begins by addressing WalMart’s Reply, with particular attention to its reliance

upon Amadasu, which is misplaced. First, the Company misquotes the case, stating “it is well

settled that a district court has ‘discretion to consider new arguments raised for the first time in

objection to a magistrate judge’s R&R.’” (Id. (purportedly quoting Amadasu, 2012 WL

3930386, at *4 (emphasis added)).) That is not so; the Amadasu Court stated that is was “new

evidence” which could be considered, see 2012 WL 3930386, at *4, but “[w]hether a party may

raise a new legal argument . . . for the first time in objections to an R & R has not yet been

decided in this Circuit.” Id. at *5 (citing Wells Fargo Bank, N.A. v. Sinnott, No. 07-cv-169, at *1

(D. Vt. Jan. 19, 2010)). The Amadasu Court followed the guidance of the Wells Fargo Court,

which considered the following six factors in deciding whether to consider a new argument made

in an objection to a report and recommendation and not presented to the magistrate judge:

(1) the reason for the litigant’s previous failure to raise the new

legal argument; (2) whether an intervening case or statute has

changed the state of the law; (3) whether the new issue is a pure

issue of law for which no additional fact-finding is required; (4)

whether the resolution of the new legal issue is not open to serious

question; (5) whether efficiency and fairness militate in favor or

against consideration of the new argument; and (6) whether

manifest injustice will result if the new argument is not considered.

Id. (citing Wells Fargo, 2010 WL 297830, at *4 (hereafter, the “Wells Fargo Factors”) (“In

applying the six factors, the Wells Fargo court noted that it was ‘[g]uided by the Second

Circuit’s standards for consideration of new legal arguments raised for the first time in a motion

for reconsideration, and its standard for considering new evidence in an objection to a magistrate

judge’s report and recommendation.’”)). Here, WalMart addresses only the first Wells Fargo

Factors, albeit in a cursory manner. Nonetheless, as: WalMart’s “open and obvious” argument is

one of pure law, not requiring any additional fact-finding; Plaintiff was able to raise her

opposition to Defendant’s new argument (see Response at 3, 4-5); and, relatedly, it is efficient

and not unfair to Plaintiff that the Court consider said argument, the Court has considered it in its

discretion, which, in the end, is unavailing.

Notwithstanding WalMart’s reliance upon the Cupo case, that court’s instructions

undermine the Company’s position that Magistrate Judge Brown erred in considering the

Company’s floor maintenance protocol when determining whether a disputed question of fact

exists as to WalMart having had constructive notice of the Alleged Dangerous Condition. As

stated, supra at p.8, the Cupo Court instructed, inter alia:

Where a plaintiff presented evidence that a dangerous condition

exists on the property, the burden shifts to the landowner to

demonstrate that [it] exercised reasonable care under the

circumstances to remedy the condition and to make the property

safe, based upon such factors as the likelihood of injury to those

entering the property and the burden of avoiding the risk.

Evidence that the dangerous condition was open and obvious

cannot relieve the landowner of this burden.

Cupo, 1 A.D.3d at 52 (emphasis added). The Court agrees with Plaintiff that the Company has

misstated New York state law regarding “open and obvious” dangers. (See Response at 5

(“Courts have held repeatedly that the open and obvious nature of a dangerous condition does

not relieve a landowner of its obligation to maintain property in a reasonably safe condition but

can be used as evidence of the plaintiff’s comparative negligence.”).)

Moreover, to the extent Defendant focuses upon the Magistrate Judge’s consideration of

the Company’s floor maintenance protocol as alleged error, that focus is too myopic and, in any

event, unpersuasive. (Cf., Report at 4 (finding Jones’ testimony “was responding to ‘[a]ny kind

of wetness on the floor’” (quoting ECF No. 21-8 at 19:17), and Company’s floor maintenance

protocol “applie[s] to the situation at issue”), with Objection at 8 (“[T]he R&R is in error as the

[D]efendant’s purported failure to follow its own internal regulations cannot serve as a basis for

imposing liability against it in this matter.”).) Since WalMart may be charged with constructive

notice only where the alleged dangerous condition was visible and apparent for a sufficient

length of time to permit its employees to discover and remedy the condition, see Urrutia v.

Target Corp., 681 F. App’x 102, 104 (2d Cir. 2017)(summary order)(quoting Hartley v.

Waldbaum, Inc., 69 A.D.3d 902, 903 (N.Y. App. Div., 2d Dept. 2010)), it was not improper for

Magistrate Judge Brown to consider evidence of the Company’s floor maintenance protocol

because it provided a relevant temporal framework against which other, relevant evidence could

be considered, i.e., whether the Store employees had sufficient time to discover the condition and

to remedy it. Review of the Report demonstrates that this is precisely what the Magistrate Judge

did: against the floor maintenance protocol, Magistrate Judge Brown considered, e.g., the Video

evidence of several different employs entering, passing through, and being stationed within view

of the Vestibule, as well as additional record evidence regarding the earlier rainfall. Moreover,

de novo review of the record supports the Magistrate Judge’s recitation of the evidence. As

Plaintiff aptly states, “After performing a careful review of the evidence and construing the

evidence in the light most favorable to the [P]laintiff, Judge Brown held that a ‘reasonable jury

can infer that the [V]estibule floor where [P]laintiff fell was wet for approximately fifty minutes,

before [P]laintiff’s fall, which is longer than the thirty minutes in Chong and the forty minutes in

Spinner.’” (Response at 7 (citing Report at 12-13); see also id. at 8 (listing undisputed evidence

upon which M.J. Brown based his recommendation).) Contrary to the Company’s

mischaracterization, the Magistrate Judge did not recommend the imposition of liability upon it

based upon its “purported failure to follow its own internal regulations” (Objection at 8); indeed,

Magistrate Judge Brown made no recommendation regarding liability. Nor, as discussed above,

did Magistrate Judge Brown base his recommendation that summary judgment be denied solely

upon consideration of the Store’s floor maintenance protocol; the protocol was utilized merely as

a temporal reference in assessing other evidence, which, considered together, raised a disputed

issue of fact for the factfinder. (See Report at 12-13.) Cf., Ghali v. Wal_Mart Stores East, LP,

No. 18-cv-2495, 2019 WL 1745704, at *7 (S.D.N.Y. Apr. 18, 2019) (“‘In the absence of proof as

to how long th[e] puddle of water was on the floor, there is no evidence to permit an inference

that the defendant had constructive notice of the condition on which the plaintiff fell.’

[Yearwood v. Cushman & Wakefield, Inc., 742 N.Y.S.2d 661] at (N.Y. App. Div. 2002)].

Plaintiff likewise cannot point to anything in the record to show that Wal-Mart failed to follow

its protocol for detecting and cleaning up spills. In fact, even after Plaintiff fell, he and

customers gestured toward the area, and a Wal-Mart employee walked over to it, the accident

area was not mopped or cleaned, suggesting that no water was visible.” (internal citations

omitted)), at *8-9 (granting summary judgment in WalMart’s favor because “[t]he record here

simply does [not] permit an inference of constructive notice, given the absence of evidence as to

the visibility of the hazard or the length of time it was present” (emphasis added) (collecting

cases)).

Further, as to Walmart’s contention that the Magistrate Judge erroneously concluded that

water was on the Vestibule floor for a definitive period of time (see Objection at 3 (without

pinciting to Report, arguing Magistrate Judge improperly engaged in “drawing factual

conclusions instead of merely identifying issues”)), no such error is had as no such conclusion

was made. Rather, consistent with one of the Company’s moving arguments that “[t]o get to a

jury [P]laintiff must provide some basis for an inference that a substance was present for a long

enough period of time for the [D]efendant to both have discovered it and remedied it” (Support

Memo. (ECF No. 23) at 7 (citing Casierra v. Target Corp., No. 09-cv-1301, 2010 WL 2793778,

at *3 (E.D.N.Y. July 12, 2010))), based upon the record presented (see Report at 11-12), which

was construed in Plaintiff’s favor as the non-moving party, see Centro de la Comunidad

Hispana, 868 F.3d at 109, Magistrate Judge Brown found presented such evidence upon which a

reasonable jury: “c[ould] infer that the [V]estibule floor where [P]laintiff fell was wet for

approximately fifty minutes before [P]laintiff’s fall;” and, “could conclude that [D]efendant had

constructive notice of the condition that caused [P]laintiff’s fall.” (Report at 12-13.) Thus, upon

de novo review of the instant record, the Court finds no error in the Magistrate Judge’s

recommendation that whether WalMart had constructive notice of the Alleged Dangerous

Condition is a disputed question of fact precluding the granting of summary judgment.

The Court has considered the Company’s remaining arguments in support of its

objections to the Report and finds them to be without merit. Hence, after considering

Defendant’s objections to the Report on the issue of constructive knowledge and having

conducted a de novo review of the record as to that issue, the Defendant’s objections are

overruled. Magistrate Judge Brown’s Report is adopted in its entirely, to wit, as to Plaintiff’s

Accident: (1) WalMart did not create the Alleged Dangerous Condition causing it; (2) WalMart

did not have actual knowledge of the Alleged Dangerous Condition causing it; but (3) it remains

a disputed question of fact whether WalMart had constructive knowledge of the Alleged

Dangerous Condition causing it.

V. Conclusion

Accordingly, IT IS HEREBY ORDERED that the Defendants’ Summary Judgment

Motion is denied.

IT IS FURTHER ORDERED that the April 1, 2020 Status Conference, currently

scheduled for 11:15 a.m. in Courtroom 1010 of the Central Islip Federal Courthouse, will

commence at 11:00 a.m. and is converted to a telephonic Status Conference. At that time, the

Parties are to call Chambers’ teleconferencing number, (877)336-1280, and follow the

automated instructions; the access code is: 7215690.

Dated this 24th day of March 2020 at Central Islip, New York.

_/s/_Sandra J. Feuerstein__

Sandra J. Feuerstein

United States District Judge