Looney v. Macy's Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Dolores Looney,

Plaintiff,

MEMORANDUM & ORDER

16-CV-04814 (DG) (MMH)

-against-

Macy’s Inc. and Thyssenkrupp Elevator Corporation,

Defendants.

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Macy’s Inc.,

Cross Claimant,

-against-

Thyssenkrupp Elevator Corporation,

Cross Defendant.

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Thyssenkrupp Elevator Corporation,

Cross Claimant,

-against-

Macy’s Inc.,

Cross Defendant.

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DIANE GUJARATI, United States District Judge:

On July 21, 2016, Plaintiff Dolores Looney commenced this negligence action in New

York Supreme Court, New York County, against Defendants Macy’s Inc. (“Macy’s”) and

Thyssenkrupp Elevator Corporation (“Thyssenkrupp”) (collectively, “Defendants”). See

generally Complaint (“Compl.”), ECF No. 4 at 5-18. Plaintiff claims to have suffered personal

injuries while descending an escalator in a Macy’s store in the Queens Center Mall in Queens

County, New York, as a result of Defendants’ negligence. See Compl. ¶¶ 49-64.1 The case was

removed to this Court on August 29, 2016. See ECF No. 1. Subsequently, Macy’s and

Thyssenkrupp brought crossclaims against one another for contribution and indemnification. See

Macy’s’ Answer to Complaint ¶¶ 69-72, ECF No. 7; Thyssenkrupp’s Amended Answer to

Complaint ¶¶ 12-15, ECF No. 11.

Pending before the Court are Macy’s’ motion for summary judgment, see Macy’s’

Motion for Summary Judgment, ECF No. 68; Macy’s’ Memorandum of Law in Support of

Macy’s’ Motion for Summary Judgment (“Macy’s’ Br.”), ECF No. 68-23; Macy’s’ Reply in

Support of Macy’s’ Motion for Summary Judgment (“Macy’s’ Reply”), ECF No. 69, and

Thyssenkrupp’s motion for summary judgment, see Thyssenkrupp’s Motion for Summary

Judgment, ECF No. 70; Thyssenkrupp’s Memorandum of Law in Support of Thyssenkrupp’s

Motion for Summary Judgment (“Thyssenkrupp’s Br.”), ECF No. 70-22; Thyssenkrupp’s Reply

in Support of Thyssenkrupp’s Motion for Summary Judgment (“Thyssenkrupp’s Reply”), ECF

No. 72. In their respective motions, Macy’s and Thyssenkrupp each seeks dismissal of

Plaintiff’s negligence claim against it, pursuant to Federal Rule of Civil Procedure 56. See

Macy’s’ Br. at 1; Thyssenkrupp’s Br. at 1. Plaintiff opposes both motions. See Plaintiff’s

Memorandum of Law in Opposition (“Pl.’s Br.”), ECF No. 73.2 Each party has filed a Statement

1 Although the Complaint is not wholly clear as to whether Plaintiff alleges a single or multiple

claims of negligence, the Court conducts its analysis as though Plaintiff alleges a separate

claim of negligence as to each of Macy’s and Thyssenkrupp. Whether Plaintiff alleges a

single or multiple claims is not material to the Court’s analysis herein.

2 Plaintiff filed her opposition briefing twice. See ECF Nos. 71, 73. Because Plaintiff’s

submissions appear to be identical, the Court refers solely to the later-filed submission, ECF

No. 73, in referencing Plaintiff’s briefing on the pending motions.

of Material Facts on Motion for Summary Judgment pursuant to Local Civil Rule 56.1 (“Rule

56.1 Statement”). See Macy’s’ Statement of Facts Pursuant to Local Rule 56.1 (“Macy’s’

56.1”), ECF No. 68-1; Thyssenkrupp’s Statement of Facts Pursuant to Local Rule 56.1

(“Thyssenkrupp’s 56.1”), ECF No. 70-1; Plaintiff’s Rule 56.1 Counterstatement of Material

Facts (“Pl.’s 56.1”), ECF No. 73-1.

For the reasons set forth below, the Court grants Defendants’ motions for summary

judgment.

BACKGROUND

I. Factual Background

Unless otherwise indicated, the following facts are undisputed or described in the light

most favorable to Plaintiff, the non-moving party.3

3 Before setting forth the factual background relevant to the instant motions, the Court notes that

Plaintiff’s Rule 56.1 Statement – submitted as a “Counterstatement of Material Facts,” see

Pl.’s 56.1 – does not comply with Local Civil Rule 56.1 of the Local Rules of the United

States District Courts for the Southern and Eastern Districts of New York (“Local Civil Rule

56.1”). Local Civil Rule 56.1(a) provides: “Upon any motion for summary judgment pursuant

to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of

motion a separate, short and concise statement, in numbered paragraphs, of the material facts

as to which the moving party contends there is no genuine issue to be tried. Failure to submit

such a statement may constitute grounds for denial of the motion.” Local Civil Rule 56.1(b)

provides that: “The papers opposing a motion for summary judgment shall include a

correspondingly numbered paragraph responding to each numbered paragraph in the statement

of the moving party, and if necessary, additional paragraphs containing a separate, short and

concise statement of additional material facts as to which it is contended that there exists a

genuine issue to be tried.” Local Civil Rule 56.1(c) provides that: “Each numbered paragraph

in the statement of material facts set forth in the statement required to be served by the moving

party will be deemed to be admitted for purposes of the motion unless specifically

controverted by a correspondingly numbered paragraph in the statement required to be served

by the opposing party.” The opposing party’s submission therefore “should consist of a

paragraph-by-paragraph response to the movant’s 56.1 statement, much like an answer to a

complaint.” In re Rezulin Prod. Liab. Litig., 361 F. Supp. 2d 268, 270 n.7 (S.D.N.Y. 2005);

see also Rodriguez v. Schneider, No. 95-CV-04083, 1999 WL 459813, at *1 n.3 (S.D.N.Y.

June 29, 1999) (“The non-movant, particularly if represented by counsel, should not leave it to

the Court to cull from this separate statement the pieces of evidence which would support the

A. The March 28, 2015 Incident

Plaintiff claims that, on March 28, 2015, she had an accident while descending an

escalator in a Macy’s store in the Queens Center Mall. Pl.’s 56.1 ¶¶ 1, 3; Macy’s’ 56.1 ¶ 1;

Thyssenkrupp’s 56.1 ¶ 1.4 Specifically, Plaintiff claims that, as she reached the bottom of the

escalator, she attempted to step off but could not do so because her left shoe got caught under the

“teeth” of the escalator. See Pl.’s 56.1 ¶¶ 8-9; Macy’s’ 56.1 ¶ 1; see also Thyssenkrupp’s 56.1

¶ 1.

By “teeth,” Plaintiff appears to refer to the escalator’s comb plate or plates, or portions

thereof. See Macy’s’ 56.1 ¶¶ 1-2, 4; Thyssenkrupp’s 56.1 ¶ 8; see also Pl.’s Br. at 1-2; Pl.’s 56.1

contentions of the non-movant asserted in its paragraph-by-paragraph response without

citation.”), aff’d, 56 F. App’x 27 (2d Cir. 2003).

Here, as Thyssenkrupp argues, see Thyssenkrupp’s Reply at 1-5, Plaintiff’s Rule 56.1

Statement does not satisfy Local Civil Rule 56.1’s requirements. Both Macy’s and

Thyssenkrupp have submitted proper Rule 56.1 Statements, with Macy’s’ submission

featuring 32 numbered paragraphs and Thyssenkrupp’s submission featuring 70 numbered

paragraphs. However, Plaintiff’s Rule 56.1 Statement features 113 numbered paragraphs and

in no way indicates how those 113 paragraphs align with or depart from the specific numbered

paragraphs in Defendants’ submissions. See generally Pl.’s 56.1. Although the Court need

not rely on this significant failure by Plaintiff, because Defendants are entitled to summary

judgment on Plaintiff’s negligence claims even considering Plaintiff’s flawed submission as a

proper Rule 56.1 Statement, the Court notes that Plaintiff’s noncompliance with Local Civil

Rule 56.1 would independently support granting summary judgment to Defendants on

Plaintiff’s negligence claims, because all of the facts advanced in Defendants’ properly

submitted Rule 56.1 Statements could be deemed admitted for purposes of the instant motions,

under Local Civil Rule 56.1(c).

4 Any citation to the parties’ Rule 56.1 Statements incorporates by reference the documents

cited therein. Each of Macy’s and Thyssenkrupp has submitted its own set of exhibits in

connection with its respective motion. See generally ECF Nos. 68, 70. Many of each

defendant’s exhibits are duplicative of those submitted by the other defendant. Where the

Court refers to particular exhibits, the Court generally refers to the exhibits submitted by

Macy’s, ECF Nos. 68-3–68-22.

Unless otherwise noted, all exhibit citations refer to the cited exhibit’s internal pagination,

rather than the pagination generated by the Court’s electronic case filing system (“ECF”).

¶ 37. The subject escalator was equipped with either a comb plate or sections of comb plates at

its base. Pl.’s 56.1 ¶¶ 37-38; Macy’s’ 56.1 ¶ 4; Thyssenkrupp’s 56.1 ¶ 8. Comb plates at the

bottom of an escalator allow for a smooth transition off the escalator. Pl.’s 56.1 ¶ 37; see

Macy’s’ 56.1 ¶ 4; Thyssenkrupp’s 56.1 ¶ 8. If something gets caught underneath an escalator’s

comb plate – or in its “teeth” – then the entire escalator should shut off. Pl.’s 56.1 ¶ 37;

Thyssenkrupp’s 56.1 ¶ 8.

Plaintiff claims that her foot remained stuck in the escalator’s teeth until “it reached the

buckle of [her] shoe,” at which point the escalator suddenly stopped, causing Plaintiff to be

thrown to the ground. Pl.’s 56.1 ¶ 9; see Macy’s’ 56.1 ¶ 3; Thyssenkrupp’s 56.1 ¶¶ 1, 31 & n.3.5

When the incident occurred, there was no one directly in front of or behind Plaintiff on

the subject escalator. Pl.’s 56.1 ¶ 5; Macy’s’ 56.1 ¶ 2. Certain of the parties appear to dispute

whether Plaintiff was looking directly ahead when the incident occurred. Compare Pl.’s 56.1

¶ 7, with Thyssenkrupp’s 56.1 ¶ 25. Plaintiff testified that, as she was approaching the bottom of

the escalator and right before she was going to get off the escalator, she did not observe anything

unusual or out of the ordinary at the bottom of the escalator. Thyssenkrupp’s 56.1 ¶ 28; see also

Macy’s’ Ex. M at 99. Prior to being thrown from the escalator, Plaintiff did not hear any sounds

coming from the subject escalator. Pl.’s 56.1 ¶ 11; see Thyssenkrupp’s 56.1 ¶ 27; see also

Macy’s’ 56.1 ¶ 27. Plaintiff never saw smoke coming from the escalator as she descended the

escalator. Thyssenkrupp’s 56.1 ¶ 26.

5 In referring to her shoe’s “buckle,” Plaintiff meant to refer to the nameplate of the shoe’s

brand. See Pl.’s 56.1 ¶ 9 n.3; see also Macy’s’ Ex. M at 102-03, ECF No. 68-15.

B. Macy’s’ Daily Escalator Inspections

Macy’s employs Visual Security Officers (“VSOs”) at the Queens Center Mall Macy’s

store. Pl.’s 56.1 ¶ 13; see Macy’s’ 56.1 ¶ 6; Thyssenkrupp’s 56.1 ¶ 12. VSOs are responsible

for, among other things, checking the store’s escalators in the morning before turning them on

with a key. See Pl.’s 56.1 ¶ 18; Macy’s’ 56.1 ¶ 6; Thyssenkrupp’s 56.1 ¶ 12. These inspections

are performed daily. Macy’s’ 56.1 ¶ 6; Thyssenkrupp’s 56.1 ¶ 12; see also Pl.’s 56.1 ¶ 18. As

part of these inspections, VSOs check for anything stuck in between the escalators and make sure

that there is no broken comb plate on the escalators. Pl.’s 56.1 ¶ 18; Macy’s’ 56.1 ¶ 7; see also

Thyssenkrupp’s 56.1 ¶¶ 13, 15. If a VSO finds an issue with an escalator, including certain

issues with respect to the escalator’s comb plate or plates, or comb plate teeth, the VSO will not

turn on the escalator. See Macy’s’ 56.1 ¶ 7; Thyssenkrupp’s 56.1 ¶ 17; Pl.’s 56.1 ¶ 18; Macy’s’

Ex. P at 30-31, ECF No. 68-18. If two or more comb teeth are broken, then the unit would be

taken out of service and the comb plate replaced. Pl.’s 56.1 ¶ 20; Thyssenkrupp’s 56.1 ¶ 15; see

also Macy’s’ Ex. P at 31-32. Upon seeing a broken comb plate, a VSO would notify Macy’s’

detectives and human resources, who would then contact an outside contractor to have the

problem addressed. See Pl.’s 56.1 ¶ 19; see also Macy’s’ 56.1 ¶¶ 7, 9; Macy’s’ Ex. P at 27-29.

One of Macy’s’ VSOs, Jennifer Davis, indicated in deposition testimony that she would usually

notice a broken comb plate approximately once a week. See Pl.’s 56.1 ¶ 20; Macy’s’ Ex. P at 30.

VSOs record the results of their inspections in a logbook. Macy’s’ 56.1 ¶ 7;

Thyssenkrupp’s 56.1 ¶ 16; see also Pl.’s 56.1 ¶ 18. If a VSO finds something stuck in an

escalator, or a broken comb plate, the VSO notes that condition in the logbook. Macy’s’ Ex. P at

27-28; Macy’s’ 56.1 ¶ 7; Thyssenkrupp’s 56.1 ¶ 15. If there are no issues with the escalator

preventing the VSO from turning it on, the VSO initials the logbook for that day.

Thyssenkrupp’s 56.1 ¶ 17.

According to the logbook for March 2015, there were no problems with the subject

escalator noted from March 1, 2015 through March 28, 2015, including on the date of the

incident. Macy’s’ 56.1 ¶ 10; see Thyssenkrupp’s 56.1 ¶ 18.

C. Thyssenkrupp’s Maintenance and Repair of the Subject Escalator

At all relevant times, Thyssenkrupp held certain responsibilities with respect to the

maintenance, repair, and replacement of the subject escalator. Macy’s’ 56.1 ¶ 11; see also

Thyssenkrupp’s 56.1 ¶ 22.

Thyssenkrupp would, on occasion, perform preventative maintenance work on the subject

escalator. See Pl.’s 56.1 ¶¶ 31, 35; Macy’s’ 56.1 ¶¶ 14, 16; Thyssenkrupp’s 56.1 ¶ 22. This

preventative maintenance was recorded in a service and maintenance log. Pl.’s 56.1 ¶ 35;

Macy’s’ 56.1 ¶ 16; see also Thyssenkrupp’s 56.1 ¶ 22. This log indicates that, in the three-

month period leading up to the March 28, 2015 incident, Thyssenkrupp performed 15 minutes of

preventative maintenance on the subject escalator on February 10, 2015 and 40 minutes of

preventative maintenance on the subject escalator on March 26, 2015 (i.e., two days before the

incident). Macy’s’ 56.1 ¶ 16; see also Thyssenkrupp’s 56.1 ¶ 22; Pl.’s 56.1 ¶ 35. With respect

to the February 10, 2015 preventative maintenance, the log notes that a service mechanic applied

silicone spray to the subject escalator’s skirts and “checked combplate teeth,” including to see

whether any teeth were missing. Pl.’s 56.1 ¶ 39. With respect to the March 26, 2015

preventative maintenance, the log shows that no teeth were missing from the subject escalator on

that date, and that there was not “anything wrong” with the escalator’s comb plate on that date.

See Thyssenkrupp’s 56.1 ¶ 23; Macy’s’ Ex. Q at 130-32, ECF No. 68-19. The log entry from

March 26, 2015 further indicates that, on that date, the subject escalator was “shutdown with 4B

fault,” that the subject escalator’s handrails were checked, and that debris was cleaned from the

subject escalator’s comb plates. See Pl.’s 56.1 ¶ 35; Macy’s’ Ex. Q at 131.

Thyssenkrupp’s log also reflects repairs rendered and service calls received with respect

to the subject escalator for the period of December 22, 2014 through March 11, 2015. Macy’s’

56.1 ¶ 17; Pl.’s 56.1 ¶¶ 40-54. The log indicates that, over that period, there were 15 service

calls for the subject escalator, approximately 11 or 12 of which were related to issues with the

subject escalator’s comb plate or plates, or comb plate teeth. See Macy’s’ 56.1 ¶ 17; Pl.’s 56.1

¶¶ 40-54.6 Certain of the log entries for the dates within that period reflect that problems with

the subject escalator’s comb plate or plates, or comb plate teeth, were “addressed,” “resolved,” or

otherwise acted upon, by replacing or changing the subject escalator’s comb plate or plates, or

portions thereof. See Pl.’s 56.1 ¶¶ 40, 42-44, 47-48, 50.

Thyssenkrupp’s log also reflects a call made on March 7, 2015 regarding the subject

escalator stopping because a shoe was stuck at the bottom. Pl.’s 56.1 ¶ 52. There were no

injuries. Id. The call was resolved by removing the shoes from the comb plate at the bottom of

the escalator, checking a switch, and returning the unit back into service. Id.7 Nothing in the

6 Macy’s’ Rule 56.1 Statement indicates that 12 of these service calls related to replacement of

the comb plate teeth. See Macy’s’ 56.1 ¶ 17. Plaintiff offers a slightly different date range –

from December 22, 2014 to March 15, 2015 – and submits that only 11 of the service calls

made throughout that period pertained to broken or missing comb plate teeth. See Pl.’s Br. at

2; see also Pl.’s 56.1 ¶ 80 (indicating that, “between December 22, 2014 to March 7,

2015, . . . there were 11 entries relating to comb plates”). These distinctions are not material

to the Court’s analysis herein.

7 Although Plaintiff’s Rule 56.1 Statement uses the plural “shoes” here, it appears that the

March 7, 2015 incident involved only a single shoe stuck at the bottom of the subject

escalator. See Pl.’s 56.1 ¶ 52; see also Pl.’s Br. at 2. This discrepancy is not material to the

Court’s analysis herein.

record before the Court indicates that this March 7, 2015 incident was the result of a broken

comb plate or plates, or the result of broken or missing comb plate teeth.

D. Macy’s’ Escalator Expert

Macy’s’ escalator expert, Michael Sena, opined “within a reasonable degree of

mechanical certainty” that the subject escalator “was properly maintained by Macy’s” and that

Macy’s “did not cause or contribute to the [underlying] incident.” Macy’s’ 56.1 ¶ 20 (alteration

in original). Mr. Sena reached his opinion, in part, on the bases: (1) that, “[o]n the morning of

the incident, the VSO did not observe any problems on the subject escalator, as indicated on the

Log;” and (2) that “[Thyssenkrupp] performed preventative maintenance on the subject escalator

two days before the incident and reported no issues or problems with it.” Id.

In his expert report, Mr. Sena noted that Thyssenkrupp performed only 55 minutes of

preventative maintenance on the subject escalator in the three-month period leading up to the

incident (15 minutes on February 10, 2015 and 40 minutes on March 26, 2015). Pl.’s 56.1 ¶ 88;

see also Macy’s’ Ex. R at 7, ECF No. 68-20. Mr. Sena noted that Thyssenkrupp’s contract with

Macy’s requires the performance of a minimum of one hour of preventative maintenance per

escalator, per month. Pl.’s 56.1 ¶ 88; see also Macy’s’ Ex. R at 7. Mr. Sena further noted that,

“[t]herefore, [Thyssenkrupp] did not perform the required amount of [preventative maintenance]

per the Contract and per industry standards.” Pl.’s 56.1 ¶ 88; see also Macy’s’ Ex. R at 7.

E. Plaintiff’s Escalator Expert

In opposing Defendants’ motions for summary judgment, Plaintiff relies on her own

escalator expert, Patrick Carrajat. See Pl.’s 56.1 ¶¶ 56-85, 94-112. Specifically, Plaintiff relies

on Mr. Carrajat’s deposition testimony, Macy’s’ Ex. T, ECF No. 68-22; an expert report

provided by Mr. Carrajat on March 26, 2018, Macy’s’ Ex. S, ECF No. 68-21;8 and an affidavit

of Mr. Carrajat submitted in connection with the instant motions, Affidavit of Patrick A. Carrajat

(“Carrajat Aff.”), ECF No. 73-2.9

In Mr. Carrajat’s deposition testimony, which in part concerned his March 26, 2018

expert report, see, e.g., Macy’s’ Ex. T at 32-35, Mr. Carrajat provided a few “initial theories” as

to “causes of entrapments of the comb plate,” specifically: the lack of comb plate penetrations or

poor row or tracks; worn rollers; and improper adjustment of the step chain, Pl.’s 56.1 ¶ 63;

Macy’s’ 56.1 ¶ 21; Thyssenkrupp’s 56.1 ¶ 52; see also Macy’s’ Ex. S at 7-8; Macy’s’ Ex. T at

47-49. With respect to the subject escalator’s comb plates, Mr. Carrajat testified that he thought

that there were one or two instances where the comb switch or comb plate was reset on this unit.

Pl.’s 56.1 ¶ 68. Mr. Carrajat further testified that a broken comb plate can be caused by several

reasons, including if someone drops a package or wheels on a cart, and does not always have to

be something related to the device itself. Pl.’s 56.1 ¶ 72; see also Macy’s’ Ex. T at 101 (Mr.

Carrajat acknowledging that, “[i]n this kind of environment, this kind of store,” a broken comb

could be caused by debris or by someone “drop[ping] a package or wheel[ing] a cart onto a unit,”

and that a broken comb does not “always have to be something relating to the device itself”).

8 Citations to Mr. Carrajat’s March 26, 2018 expert report, Macy’s’ Ex. S, ECF No. 68-21, refer

to the page numbers generated by ECF, not the document’s internal pagination.

9 Plaintiff’s Rule 56.1 Statement also refers to an initial expert report provided by Mr. Carrajat

on March 26, 2016. See Pl.’s 56.1 ¶ 60. This reference to 2016 appears to have been made in

error, as Mr. Carrajat’s deposition testimony indicates that Mr. Carrajat issued his “original

preliminary expert report” on March 26, 2018. See Macy’s’ Ex. T at 33-34. In any event, the

record before the Court includes only one expert report issued by Mr. Carrajat, see generally

Macy’s’ Ex. S, which is dated March 26, 2018, see Macy’s’ Ex. S at 2, 9. Accordingly, the

Court herein refers to this singular March 26, 2018 expert report. The date of the report has

no bearing on the Court’s analysis herein.

It was Mr. Carrajat’s opinion that nothing Plaintiff did caused or contributed to her fall.

Pl.’s 56.1 ¶ 83. Mr. Carrajat further testified at his deposition that the subject escalator was

installed in 1973, which would be “way beyond its useful life,” especially because of the “heavy

usage.” Pl.’s 56.1 ¶ 64 (quoting Macy’s’ Ex. T at 52-53).

Mr. Carrajat’s testimony – according to Plaintiff’s Rule 56.1 Statement – shows that

VSOs “were not trained escalator mechanics and were not qualified to perform inspections of the

mechanics of the escalators.” Pl.’s 56.1 ¶ 69. Mr. Carrajat testified that it would not be possible

for Macy’s’ employees to determine if there was adequate penetration based on visual

observation alone, Pl.’s 56.1 ¶ 70, and that one cannot tell if an escalator’s step is low just by

looking at it, Pl.’s 56.1 ¶ 71.

Mr. Carrajat testified that he obtained documents from the New York City Department of

Building’s website known as ELV-3, which lists the annual Category 1 and Category 5

inspections that were found to be “unsatisfactory” for the subject escalator. Pl.’s 56.1 ¶ 81. Mr.

Carrajat further testified that he did not see a Department of Buildings report of an accident on

the date of Plaintiff’s alleged accident. Pl.’s 56.1 ¶ 62.

As to the affidavit of Mr. Carrajat submitted in connection with the instant motions, Mr.

Carrajat therein states that a photograph taken on the day of the alleged accident “clearly shows

missing combfingers on both the right and left ends of the escalator,” and that “[c]learly, Macy’s

violated its own protocols because Ms. Davis testified that if an escalator had two or more

broken comb teeth, then it would be taken out of service.” Carrajat Aff. ¶ 13; see also Pl.’s 56.1

¶ 98.

With respect to certain service calls made to Thyssenkrupp during the period of

December 22, 2014 through March 11, 2015, Mr. Carrajat submits in his affidavit that, because

12 of those calls were related to replacement of the comb plate teeth, “Macy’s and

[Thyssenkrupp] [were] on notice that there [wa]s excessive breakage of the combfingers.”

Carrajat Aff. ¶ 22; see also Pl.’s 56.1 ¶ 101. Mr. Carrajat further submits that “[r]eplacing the

combfingers, without determining why they [we]re breaking [wa]s negligent practice on the part

of [Thyssenkrupp].” Carrajat Aff. ¶ 22; see also Pl.’s 56.1 ¶ 101. Similarly, Mr. Carrajat

submits that “5 service outages a month are not common and are a sign of lack of proper care

and maintenance.” Carrajat Aff. ¶ 57; see also Pl.’s 56.1 ¶ 111. In his affidavit, Mr. Carrajat

also takes issue with Mr. Sena’s “characterization” that 40 minutes of preventative maintenance

was performed on the subject escalator on March 26, 2015. Pl.’s 56.1 ¶ 110; see Carrajat Aff.

¶ 54.

Finally, Mr. Carrajat submits in his affidavit that Macy’s was required – but failed – to

report the March 28, 2015 incident to the Department of Buildings, and that this failure

“deprived . . . Plaintiff of any benefit that may have accrued from an impartial and

contemporaneous inspection by a neutral party.” Carrajat Aff. ¶¶ 24-25; see also Pl.’s 56.1

¶ 102.

II. Procedural Background

Plaintiff filed her Complaint in New York Supreme Court, New York County on July 21,

2016. See generally Compl., ECF No. 4 at 5-18. The case was removed to this Court on August

29, 2016. See ECF No. 1.

Macy’s’ and Thyssenkrupp’s motions for summary judgment were filed on May 18,

2021. See ECF Nos. 68-70, 72. On May 21, 2021, Plaintiff’s Memorandum of Law in

Opposition to Defendants’ motions was filed, see ECF No. 73, together with the affidavit of

Patrick Carrajat, see ECF No. 73-2. All three parties submitted Rule 56.1 Statements. See ECF

Nos. 68-1, 70-1, 73-1.

STANDARD OF REVIEW

Rule 56(a) of the Federal Rules of Civil Procedure provides that a “court shall grant

summary judgment 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.” Fed. R. Civ. P. 56(a). “A genuine

issue of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.’” Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113

(2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

“A party asserting that a fact cannot be or is genuinely disputed must support the

assertion by (A) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the [summary judgment] motion only), admissions, interrogatory

answers, or other materials; or (B) showing that the materials cited do not establish the absence

or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.” Fed. R. Civ. P. 56(c)(1); see also Salahuddin v. Goord, 467 F.3d 263, 272-73

(2d Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The moving party bears the initial burden of establishing the absence of any genuine

issue of material fact. See Liberty Lobby, Inc., 477 U.S. at 256; Holcomb v. Iona Coll., 521 F.3d

130, 137 (2d Cir. 2008). If the moving party meets its initial burden, “the burden shifts to the

nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin,

467 F.3d at 273; accord Miller v. Nassau Health Care Corp., No. 09-CV-05128, 2012 WL

2847565, at *3 (E.D.N.Y. July 11, 2012). “Like the movant, the nonmovant cannot rest on

allegations in the pleadings” but, rather, “must point to specific evidence in the record to carry its

burden on summary judgment,” Salahuddin, 467 F.3d at 273, offering “concrete evidence from

which a reasonable juror could return a verdict in [its] favor,” Dister v. Cont’l Grp., 859 F.2d

1108, 1114 (2d Cir. 1988) (quoting Liberty Lobby, Inc., 477 U.S. at 256). The party opposing

summary judgment “must do more than simply show that there is some metaphysical doubt as to

the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). Bald assertions, completely unsupported by evidence, do not satisfy the opposing party’s

burden. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); see also McPherson v. N.Y.C. Dep’t

of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) (“[S]peculation alone is insufficient to defeat a

motion for summary judgment.”).

Rule 56 “does not impose an obligation on a district court to perform an independent

review of the record to find proof of a factual dispute.” Amnesty Am. v. Town of W. Hartford,

288 F.3d 467, 470 (2d Cir. 2002). “While the trial court has discretion to conduct an assiduous

review of the record in an effort to weigh the propriety of granting a summary judgment motion,

it is not required to consider what the parties fail to point out.” Monahan v. N.Y.C. Dep’t of

Corr., 214 F.3d 275, 292 (2d Cir. 2000) (quotation marks omitted).

In deciding a motion for summary judgment, a district court properly considers only

evidence that would be admissible at trial. Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164

F.3d 736, 746 (2d Cir. 1998). “In determining whether summary judgment is appropriate, [a

district court] must resolve all ambiguities and draw all reasonable inferences against the moving

party.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citing Matsushita Elec. Indus. Co.,

Ltd., 475 U.S. at 587). A district court “is duty bound not to weigh evidence or assess the

credibility of witnesses.” Smith v. DeGirolamo, No. 17-CV-05532, 2020 WL 5752226, at *3

(E.D.N.Y. Sept. 25, 2020) (citing United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994)).

DISCUSSION

For the reasons set forth below, Defendants are entitled to summary judgment on

Plaintiff’s negligence claims.

I. Applicable Law

The elements of a negligence claim under New York law10 are: “(i) a duty owed to the

plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that

breach.” Pasternack v. Lab’y Corp. of Am. Holdings, 807 F.3d 14, 19 (2d Cir.), as amended

(Nov. 23, 2015) (quoting Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir.

2002)); see also Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985) (“To establish a

prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to

the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.”).

Here, Plaintiff appears to rest her negligence action on a theory of premises liability, and,

more specifically, on the theory that the subject escalator or certain of its parts constituted a

dangerous or defective condition that caused Plaintiff’s injuries. See, e.g., Pl.’s Br. at 5-6; see

also, e.g., Compl. ¶¶ 28-29, 46-47, 53-57. “To succeed on a premises liability claim alleging any

10 All parties agree that New York substantive law applies in the instant case. See Pl.’s Br. at

5-8; Macy’s’ Br. at 8-9; Thyssenkrupp’s Br. at 5-6; see also Bonchon LLC v. LKRG

Provisions & Holdings, LLC, No. 20-CV-03938, 2021 WL 5042858, at *3 n.7 (S.D.N.Y. Oct.

29, 2021) (“The parties’ briefs assume that New York law controls, and such implied consent

is sufficient to establish choice of law.” (quoting Alphonse Hotel Corp. v. Tran, 828 F.3d 146,

152 (2d Cir. 2016))).

injury caused by a defective condition, the plaintiff must demonstrate ‘that the defendant either

created the defective condition, or had actual or constructive notice thereof for such a period of

time that, in the exercise of reasonable care, it should have corrected it.’” Tenay v. Culinary

Tchrs. Ass’n of Hyde Park, 281 F. App’x 11, 13 (2d Cir. 2008) (alteration accepted) (quoting

Baez v. Jovin III, LLC, 839 N.Y.S.2d 201, 202 (2d Dep’t 2007)); accord Lionel v. Target Corp.,

44 F. Supp. 3d 315, 318-19 (E.D.N.Y. 2014) (explaining at the summary judgment stage that,

“[i]n order to show breach of a duty of care in a slip-and-fall case, the plaintiff must demonstrate

a genuine issue of material fact that the defendant either created the dangerous condition or had

actual or constructive notice of the condition”).

“To establish that a defendant created a dangerous condition or defect, a plaintiff must

point to some affirmative act on the part of the defendant.” Decker v. Middletown Walmart

Supercenter Store, No. 15-CV-02886, 2017 WL 568761, at *5 (S.D.N.Y. Feb. 10, 2017)

(quotation marks omitted) (quoting Vasquez v. United States, No. 14-CV-01510, 2016 WL

315879, at *7 (S.D.N.Y. Jan. 15, 2016)). “Although circumstantial evidence may be sufficient to

defeat a motion for summary judgment if it creates an inference that Defendant created the

condition through affirmative acts, a plaintiff cannot avoid summary judgment through mere

speculation and conjecture regarding how a defendant may have created a particular hazard.” Id.

(alteration accepted) (quotation marks omitted).

As to notice, actual notice requires proof that a defendant was, “in fact, aware of the

dangerous condition.” Wilson v. Wal-Mart Stores E., LP, No. 16-CV-08637, 2018 WL 4473342,

at *7 (S.D.N.Y. Sept. 18, 2018) (quotation marks omitted). “[A] defendant has actual notice if it

either created the condition or received reports of it such that it is actually aware of the existence

of the particular condition that caused the [complained-of accident].” Bogery v. United States,

No. 17-CV-06996, 2018 WL 4265901, at *3 (S.D.N.Y. Sept. 6, 2018); accord Lionel, 44 F.

Supp. 3d at 319 n.4 (“Where the defendant created the dangerous condition, actual notice is

presumed.” (quotation marks omitted)).

For a defendant to have constructive notice, the alleged defect must have been “visible

and apparent” and must have existed “for a sufficient length of time prior to the accident to

permit defendant’s employees to discover and remedy it.” Antonelli v. Wal-Mart Stores, Inc.,

216 F.3d 1071, 2000 WL 876785, at *1 (2d Cir. 2000) (quoting Gordon v. Am. Museum of Nat.

Hist., 67 N.Y.2d 836, 837 (1986)); accord Poirier v. Kohl’s Dep’t Stores, Inc., No. 19-CV-

03001, 2021 WL 1178214, at *4 (S.D.N.Y. Mar. 29, 2021). This inquiry, like the actual notice

inquiry, focuses on the “particular condition that caused [the complained-of accident].” See

Gordon, 67 N.Y.2d at 838 (emphasis added). In connection with this inquiry, “[t]he absence of

evidence demonstrating how long a condition existed prior to a plaintiff’s accident constitutes a

failure to establish the existence of constructive notice as a matter of law.” Poirier, 2021 WL

1178214, at *4 (quoting Rivera v. Target Dep’t Store, Inc., No. 15-CV-07846, 2017 WL

2709745, at *5 (S.D.N.Y. June 22, 2017)).

“Alternatively, a plaintiff can establish constructive notice through evidence that the

defendant was aware of an ongoing and recurring unsafe condition which regularly went

unaddressed.” Bogery, 2018 WL 4265901, at *3 (quoting Watts v. Wal-Mart Stores E., LP,

No. 16-CV-04411, 2018 WL 1626169, at *5 n.7 (S.D.N.Y. Mar. 29, 2018)); accord

O’Connor-Miele v. Barhite & Holzinger, Inc., 650 N.Y.S.2d 717, 719 (1st Dep’t 1996). The

New York State Court of Appeals has made clear, however, “that a defendant’s ‘general

awareness’ of a dangerous condition on the premises is not legally sufficient to charge a

defendant with constructive notice of the particular condition that caused the plaintiff’s injury.”

Bogery, 2018 WL 4265901, at *3 (quoting Gonzalez v. Wal-Mart Stores, Inc., 299 F. Supp. 2d

188, 193 (S.D.N.Y. 2004)); accord Gordon, 67 N.Y.2d at 838. Thus, although a plaintiff

proceeding under a “recurring condition” theory of constructive notice need not “establish the

defendant’s knowledge of the existence of the exact hazard [that caused the complained-of

accident],” the plaintiff must nevertheless show that the “defendant had knowledge of the

particular dangerous condition that [was] qualitatively different from a mere general awareness

that a dangerous condition may be present.” Ricci v. Wal-Mart Stores E., LP, No. 16-CV-06920,

2018 WL 4308556, at *10 (S.D.N.Y. Sept. 10, 2018) (alterations accepted) (quotation marks

omitted).

Finally, a plaintiff alleging negligence may, in certain circumstances, proceed under a

theory of res ipsa loquitur, which does not require the plaintiff to prove the elements usually

necessary to state a negligence claim, including notice. See Levans v. Delta Airlines, Inc., No.

12-CV-00773, 2016 WL 9447211, at *5 (E.D.N.Y. Aug. 1, 2016), aff’d, 691 F. App’x 678 (2d

Cir. 2017); see also Flowers v. Delta Airlines, Inc., No. 00-CV-00783, 2001 WL 1590511, at *3

(E.D.N.Y. Nov. 7, 2001) (“The doctrine [of res ipsa loquitur] permits a plaintiff to establish a

prima facie case of negligence without proving the elements usually necessary to state a

negligence claim.”).

II. Defendants are Entitled to Summary Judgment on Plaintiff’s Negligence Claims

A. The Dangerous or Defective Condition at Issue

As a preliminary matter, Plaintiff has not clearly described the exact dangerous or

defective condition for which she seeks to hold Defendants liable. Cf. Poirier, 2021 WL

1178214, at *4. Plaintiff’s submissions repeatedly suggest that her injuries were the result of a

broken comb plate or plates, or of broken or missing comb plate teeth, at the bottom of the

subject escalator. See, e.g., Pl.’s Br. at 2 (referencing “issues involving the comb plate and teeth

of th[e] escalator”), 11 (referencing “multiple broken combplates at the bottom of the escalator”),

13 (referencing “broken or missing combfingers”); Pl.’s 56.1 ¶ 72 (referencing potential

causation of a “broken comb plate”); see also Pl.’s Br. at 21 (referring to “the mechanism in

question” as “combplate teeth and switch”). And there is, indeed, evidence before the Court of

prior incidents in which the subject escalator featured a broken comb plate or plates, or broken or

missing comb plate teeth. See Macy’s’ 56.1 ¶ 17; Pl.’s 56.1 ¶¶ 40-50; see also Pl.’s 56.1 ¶ 80.

However, Plaintiff, at times, suggests that her injuries resulted from the malfunctioning

of some other part of the subject escalator. See, e.g., Pl.’s Br. at 21-22. In this regard, Plaintiff

appears to rely on three alternative theories as to how the alleged accident occurred, all three of

which seem to derive from Mr. Carrajat’s expert report and deposition testimony. Specifically,

Plaintiff suggests in her Rule 56.1 Statement that the alleged accident may have resulted from:

the lack of comb plate penetrations or poor row or tracks; worn rollers; or improper adjustment

of the step chain. See Pl.’s 56.1 ¶ 63. All three of these theories appear aimed at explaining the

causation of “[c]omb-finger entrapments” generally, see Macy’s’ Ex. S at 7-8, perhaps even in

the absence of a broken comb plate or plates and broken or missing comb plate teeth. Crucially,

though, none of these three theories is supported by evidence on which the Court may rely at this

stage.

Mr. Carrajat refers to these theories in his deposition testimony and expert report. See

Pl.’s 56.1 ¶ 63; Macy’s’ 56.1 ¶ 21; Thyssenkrupp’s 56.1 ¶ 52; see also Macy’s’ Ex. S at 7-8;

Macy’s’ Ex. T at 47-49. In his deposition testimony, Mr. Carrajat describes generally “what

causes entrapments of the comb plate.” See Macy’s’ Ex. T at 47-49; see also id. (indicating that

the identified potential causes were “hypothes[es]” or “theor[ies]”). Similarly, Mr. Carrajat’s

expert report describes generally the most common causes of “[c]omb-finger entrapments.” See

Macy’s’ Ex. S at 7-8. Mr. Carrajat does not, in either his deposition testimony or his expert

report, tie any of his causation theories to this specific case.11 Thus, to the extent that Mr.

Carrajat can be said to have opined that Plaintiff’s injuries were caused not by a broken comb

plate or plates, or by broken or missing comb plate teeth, at the bottom of the subject escalator,

but rather by the failure of some other of the subject escalator’s mechanisms, Mr. Carrajat’s

conclusions constitute “mere speculation” that cannot serve to raise a triable issue of fact as to

the condition that caused Plaintiff’s alleged accident. See Skidd v. JW Marriot Hotels & Resorts,

No. 06-CV-01554, 2010 WL 2834890, at *5-6 (S.D.N.Y. July 8, 2010) (rejecting at the summary

judgment stage as “mere speculation” portions of an affidavit submitted by Mr. Carrajat in a case

regarding an alleged elevator accident); see also Meade v. Otis Elevator Co., No. 15-CV-04822,

2017 WL 6509259, at *6-7 (S.D.N.Y. Dec. 18, 2017) (rejecting at the summary judgment stage

as “mere speculation or conjecture” certain of Mr. Carrajat’s testimony as to an alleged elevator

accident (quotation marks omitted)).12

Accordingly, the Court focuses its negligence analysis on the sole type of possible

dangerous or defective condition as to which Plaintiff has identified record evidence properly

11 To the extent that Mr. Carrajat’s affidavit includes any new opinions on this point – for

example, Mr. Carrajat’s suggestion that some other issue with the subject escalator was

causing its combfingers to break on a regular basis, see Carrajat Aff. ¶ 57 – such opinions are,

as set forth below, excluded and cannot serve to create a genuine dispute of material fact

precluding summary judgment.

12 Defendants each argue that the Court should reject Mr. Carrajat’s deposition testimony and

expert report in their entirety. See Macy’s’ Br. at 14-17; Thyssenkrupp’s Br. at 9-11. The

Court need not – and declines to – do so. As set forth in greater detail below, even accepting

as true the portions of Mr. Carrajat’s testimony not identified above as “mere speculation,”

Defendants are entitled to summary judgment.

before the Court – i.e., a broken comb plate or plates, or broken or missing comb plate teeth, at

the bottom of the subject escalator.13

B. Creation of a Dangerous or Defective Condition

Plaintiff does not appear to argue that Defendants created the allegedly dangerous or

defective condition that caused her alleged accident.

In any event, Defendants have demonstrated an absence of record evidence permitting the

conclusion that Macy’s or Thyssenkrupp created a dangerous or defective condition with respect

to the subject escalator. The instant record contains no evidence showing, for example, that a

Macy’s or Thyssenkrupp employee caused any damage to the subject escalator’s comb plate or

plates, or somehow otherwise produced broken or missing comb plate teeth, present on the

subject escalator at the time of Plaintiff’s accident. See Strass v. Costco Wholesale Corp., No.

14-CV-06924, 2016 WL 3448578, at *4 (E.D.N.Y. June 17, 2016) (granting summary judgment

where, inter alia, plaintiffs failed to identify any evidence that defendant created the spill that

allegedly caused plaintiff’s fall).

To the extent that Plaintiff argues that the record evidence shows “repeated instances of

broken combplates” and that such repeated instances constitute circumstantial evidence that

Macy’s or Thyssenkrupp (or one of their employees) created a dangerous or defective condition,

see Pl.’s Br. at 13, such an argument, without “any evidence specifically linking [a defendant’s]

actions to the hazard’s creation,” is mere speculation that does not serve to raise a genuine

dispute of material fact, see Vasquez, 2016 WL 315879, at *7 (emphasis added).

13 The Court notes that, even if the Court were to accept that Plaintiff has sufficiently identified

some other dangerous or defective condition, there is no evidence before the Court suggesting

that Defendants either created or were on notice of any such dangerous or defective condition

with respect to the subject escalator.

In sum, Defendants have demonstrated an absence of record evidence showing that either

of Defendants created a dangerous or defective condition with respect to the subject escalator,

and Plaintiff has failed to point to any evidence showing as much. There is no genuine dispute

of material fact as to this issue.

C. Actual Notice

Defendants have demonstrated an absence of record evidence permitting the conclusion

that Defendants had actual notice of the particular dangerous or defective condition alleged to

have caused Plaintiff’s accident. First, as discussed above, there is no evidence before the Court

that Macy’s or Thyssenkrupp created a dangerous or defective condition with respect to the

subject escalator. Second, there is no evidence before the Court that Macy’s or Thyssenkrupp

(or one of their employees), for example, received a report – or otherwise actually knew – of a

specific broken comb plate or plates, or of broken or missing comb plate teeth, existing at the

bottom of the subject escalator at the time of Plaintiff’s alleged accident. See Decker, 2017 WL

568761, at *6 (granting summary judgment to defendant where, inter alia, plaintiff did not

suggest that defendant’s employees had observed the substance on the ground that allegedly

caused plaintiff’s fall); Greco v. Starbucks Coffee Co., No. 05-CV-07639, 2006 WL 1982761,

at *3 (S.D.N.Y. July 14, 2006) (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”).

Indeed, the evidence before the Court reflects that Defendants and their employees did

not know of any issue with the subject escalator at the time of Plaintiff’s alleged accident.

Specifically, the instant record shows that Macy’s’ VSO logbook, which contained the results of

the daily escalator inspections performed by Macy’s’ VSOs, reflected that there were no

problems with the subject escalator noted on the morning of the alleged accident, Macy’s’ 56.1

¶¶ 6, 10; Thyssenkrupp’s 56.1 ¶¶ 16, 18; see also Pl.’s 56.1 ¶ 18. See Ferrara v. Transform KM

LLC, No. 20-CV-00236, 2021 WL 3188389, at *3 (N.D.N.Y. July 28, 2021) (concluding, in a

case concerning an alleged motorized scooter injury, that defendant had presented competent

evidence that it lacked actual or constructive notice of the alleged defect where, inter alia, “the

evidence indicate[d] that inspections of the motorized scooters were performed daily [and that]

the inspection on the day of the incident did not reveal a defect in the [relevant part] of the

scooter”); Janetos v. Home Depot U.S.A., Inc., No. 09-CV-01025, 2012 WL 4049839, at *5, *11

(E.D.N.Y. Sept. 13, 2012) (concluding that plaintiff had not demonstrated actual notice where

defendant’s manager conducted a daily “safety walk” and where plaintiff failed to present “any

evidence that there was knowledge or notice of an unsafe condition” discovered on the safety

walk that took place on the morning of the accident); see also Poirier, 2021 WL 1178214, at *4

(“Moreover, assuming an employee conducted the daily yard audit check on [the date of the

complained-of accident], there is no record evidence that any employee uncovered a dangerous

or defective condition on that date.”). Additionally, Thyssenkrupp’s service and maintenance

log reflects, with respect to the preventative maintenance conducted on the subject escalator just

two days before the accident, that no teeth were missing from the subject escalator’s comb plate

on that date, and that there was not “anything wrong” with the escalator’s comb plate on that

date. See Thyssenkrupp’s 56.1 ¶ 23; Macy’s’ Ex. Q at 130-32 (discussing March 26, 2015

preventative maintenance); see also Pl.’s 56.1 ¶ 1 (reflecting that the alleged accident occurred

on March 28, 2015).

Plaintiff has not pointed to any contrary evidence on this issue. To the extent that

Plaintiff argues that “documented evidence of multiple broken combplates at the bottom of the

escalator [on prior occasions] raises an issue as to whether defendants had actual notice of a

hazardous condition,” Pl.’s Br. at 11, this argument misunderstands the actual notice inquiry.

Such “general awareness” of the subject escalator’s condition “is insufficient to establish actual

notice.” See Poirier, 2021 WL 1178214, at *5. Rather, Plaintiff must point to evidence showing

that Defendants were “aware of the existence of the particular condition that caused the

[complained-of accident],” Bogery, 2018 WL 4265901, at *3 – i.e., that Defendants were aware

of an issue that existed with the escalator’s comb plate or plates, or comb plate teeth, at the time

of Plaintiff’s accident. Plaintiff has not done so here.

In sum, Defendants have demonstrated an absence of record evidence showing that either

of Defendants had actual notice of a dangerous or defective condition with respect to the subject

escalator, and Plaintiff has failed to point to any evidence showing as much. There is no genuine

dispute of material fact as to this issue.

D. Constructive Notice

Defendants have similarly demonstrated an absence of record evidence permitting the

conclusion that Defendants had constructive notice of a particular dangerous or defective

condition with respect to the subject escalator.

As set forth above, in this context, there are two theories by which a plaintiff can

demonstrate constructive notice. Plaintiff does not appear to advance an argument under the first

theory, which requires evidence that the alleged defect was “visible and apparent” and existed

“for a sufficient length of time prior to the accident to permit defendant’s employees to discover

and remedy it,” Antonelli, 216 F.3d 1071, 2000 WL 876785, at *1 (quotation marks omitted).

See Pl.’s Br. at 15. In any event, as Defendants have demonstrated, the instant record would not

support such a theory, as there is no evidence indicating the length of time during which any

dangerous or defective condition with respect to the subject escalator was present. See Poirier,

2021 WL 1178214, at *4 (“The absence of evidence demonstrating how long a condition existed

prior to a plaintiff’s accident constitutes a failure to establish the existence of constructive notice

as a matter of law.” (quotation marks omitted)). The instant record contains no evidence

showing, for example, that the subject escalator featured, for some established period of time

leading up to Plaintiff’s alleged accident, a broken comb plate or plates, or broken or missing

comb plate teeth, present at the time of the alleged accident. Indeed, as explained above, the

record evidence suggests that no dangerous or defective condition was present on the morning of

the accident – or at least not one “visible or apparent” to the VSO who conducted that morning’s

inspection. Macy’s’ 56.1 ¶¶ 6, 10; Thyssenkrupp’s 56.1 ¶¶ 16, 18; see also Pl.’s 56.1 ¶ 18.14

Plaintiff appears to rest her constructive notice argument solely on the second theory by

which a plaintiff can prove constructive notice, arguing that, here, Defendants had constructive

14 To the extent that Plaintiff argues that “documented evidence of multiple broken combplates

at the bottom of the escalator” on prior occasions put Defendants on constructive notice of a

dangerous or defective condition with respect to the subject escalator, see Pl.’s Br. at 11, this

argument cannot serve to create a genuine dispute of material fact as to a theory of

constructive notice based upon the length of time that a dangerous or defective condition was

visible and apparent. To prevail under such a theory of constructive notice, a plaintiff “must

provide evidence from which a jury could infer Defendant’s ‘constructive notice of the

specific condition that allegedly caused plaintiff's injuries.’” Ghali v. Wal-Mart Stores E., LP,

No. 18-CV-02495, 2019 WL 1745704, at *7 (S.D.N.Y. Apr. 18, 2019) (emphasis added)

(quoting Carter v. N.Y.C. Hous. Auth., 956 N.Y.S.2d 26, 27 (1st Dep’t 2012)). Evidence as to

prior incidents of broken comb plates, or broken or missing comb plate teeth, does not amount

to evidence of a specific broken comb plate or plates, or specific broken or missing comb plate

teeth, existing at the time of Plaintiff’s alleged accident. See id. (noting absence of evidence

as to “the particular water on which Plaintiff allegedly slipped”); see also Pinnock v. Kmart

Corp., No. 04-CV-03160, 2005 WL 3555433, at *1, *3 (S.D.N.Y. Dec. 29, 2005) (focusing

length-of-time constructive notice inquiry on the specific condition alleged – there, a clear

plastic hanger allegedly left on the floor of a Kmart store).

notice of a hazardous condition with respect to the subject escalator “based on a recurrent

condition that they failed to resolve.” Pl.’s Br. at 15 (citing Armstrong v. Ogden Allied Facility

Mgmt. Corp., 722 N.Y.S.2d 503 (1st Dep’t 2001)); see also Armstrong, 722 N.Y.S.2d at 505

(acknowledging theory of constructive notice based on “an ongoing dangerous condition”).

Specifically, Plaintiff appears to argue that prior incidents of broken comb plates or broken or

missing comb plate teeth, as recorded in Thyssenkrupp’s service and maintenance log, reflect the

existence of a “recurrent condition” with respect to the subject escalator’s comb plates. See Pl.’s

Br. at 15. In making this argument, Plaintiff places significant weight on the March 7, 2015 call

placed to Thyssenkrupp regarding the subject escalator stopping because a shoe was stuck at the

bottom. See Pl.’s Br. at 13; Pl.’s 56.1 ¶ 52.

Plaintiff is correct that one can, in certain circumstances, “establish constructive notice

through evidence that the defendant was aware of an ongoing and recurring unsafe condition.”

Bogery, 2018 WL 4265901, at *3. But such a theory can prevail only where the recurring unsafe

condition “regularly went unaddressed.” Id.; see also Ricci, 2018 WL 4308556, at *10

(explaining that, for a “recurring dangerous condition” to give rise to constructive notice, the

condition must have been “routinely left unaddressed”); Bogery, 2018 WL 4265901, at *6

(indicating that one element of a “recurring condition” theory is “that the condition went

routinely or regularly unaddressed”).

Here, drawing all reasonable inferences against Defendants, the record before the Court

does contain evidence that Defendants were aware of a recurring condition with respect to the

subject escalator’s comb plate or plates and comb plate teeth. As indicated by Thyssenkrupp’s

service and maintenance log, between December 22, 2014 and March 11, 2015 or March 15,

2015, approximately 11 or 12 service calls were received with respect to issues with the subject

escalator’s comb plate or plates, or comb plate teeth. See Macy’s’ 56.1 ¶ 17; Pl.’s 56.1 ¶¶ 40-54;

see also Pl.’s 56.1 ¶ 80. This evidence suggests that both Thyssenkrupp and Macy’s were aware

of a recurring issue with the comb plate or plates and comb plate teeth of this specific escalator.

See Bogery, 2018 WL 4265901, at *6 (“[A]wareness of a dangerous condition that recurs in the

same particular location is sufficient to prove constructive notice of a recurring condition.”); see

also Lyman v. PetSmart, Inc., No. 16-CV-04627, 2018 WL 4538908, at *9 (S.D.N.Y. Sept. 21,

2018) (concluding that there was evidence showing that defendant was aware of a specific

recurring condition with respect to dog waste within its store where the record included

“testimony that dogs relieved themselves once they entered the store”).

However, the record before the Court contains no evidence that this recurring condition

went regularly unaddressed – indeed, quite the opposite. There is no dispute that Macy’s’ VSOs,

on a daily basis, checked the store’s escalators in the morning before turning them on, including

for issues with the escalators’ comb plates and comb plate teeth. See Pl.’s 56.1 ¶ 18; Macy’s’

56.1 ¶¶ 6-7; Thyssenkrupp’s 56.1 ¶¶ 12-13, 15, 17; Macy’s’ Ex. P at 30-31.15 It is also

undisputed that Macy’s’ VSOs, upon seeing a broken comb plate, would notify Macy’s’

detectives and human resources, who would then contact an outside contractor to have the

problem addressed. See Pl.’s 56.1 ¶ 19; see also Macy’s’ 56.1 ¶¶ 7, 9; Macy’s’ Ex. P at 27-29.

15 Certain of Mr. Carrajat’s testimony indicates that Macy’s’ employees “were not qualified to

perform inspections of the mechanics of the escalators,” Pl.’s 56.1 ¶ 69 (emphasis added), and

that Macy’s’ employees would have been unable to detect certain issues with the subject

escalator based on visual inspection alone, see Pl.’s 56.1 ¶¶ 70-71. These assertions, however,

concern Mr. Carrajat’s alternative theories as to other of the subject escalator’s mechanisms

that may have caused Plaintiff’s alleged accident. As explained above, these theories lack

foundation in the record and do not provide a basis for denying summary judgment to

Defendants. There is no genuine dispute of material fact as to whether Macy’s’ VSOs could

detect the kind of condition at issue here: a broken comb plate or plates, or broken or missing

comb plate teeth.

Moreover, the very evidence on which Plaintiff bases her “recurring condition” theory – i.e., the

Thyssenkrupp service and maintenance log entries – shows that, when there were issues with the

subject escalator’s comb plate or plates, or comb plate teeth, those issues were, indeed, regularly

“addressed” or “resolved,” or otherwise acted upon, by replacing or changing the subject

escalator’s comb plate or plates, or portions thereof, see Pl.’s 56.1 ¶¶ 40, 42-44, 47-48, 50. See

Bogery, 2018 WL 4265901, at *6 (concluding that plaintiff could not demonstrate constructive

notice where “the very procedure that establishe[d] awareness of the recurring condition”

negated the element “that the condition went routinely or regularly unaddressed”). This

“comprehensive procedure” for addressing issues with the subject escalator, including with

respect to its comb plate or plates and comb plate teeth, precludes liability for accidents arising

from this known, recurring condition. See id.; Lyman, 2018 WL 4538908, at *9 (rejecting

plaintiff’s “recurring condition” theory where there was no dispute that defendant “employed

numerous safeguards” against the dangers resulting from the type of accident complained of);

Ferrara, 2021 WL 3188389, at *3.16

Plaintiff has not established a genuine dispute of material fact with respect to these

issues.

16 These undisputed facts separate this case from those that Plaintiff cites in support of her

constructive notice argument. See Pl.’s Br. at 15. The Armstrong decision, for example, does

not indicate that the record in that case contained evidence of a comprehensive procedure for

addressing the hazard at issue there. See 722 N.Y.S.2d at 505. Plaintiff’s reliance on Morales

v. LaSalle Partners, 737 N.Y.S.2d 619 (1st Dep’t 2002), which concerned an accident

allegedly caused by loose carpeting, also is unavailing. Although the Morales case featured

evidence that the defendants repeatedly called an outside company to tighten the carpet but

that it kept loosening, see id. at 619, the Morales decision did not indicate that these measures

were part of a comprehensive procedure like the one used by Defendants here – a procedure

that is, importantly, more much more akin to the procedures at issue in Bogery and Lyman.

As to the March 7, 2015 call placed to Thyssenkrupp regarding the subject escalator

stopping because a shoe was stuck at the bottom, nothing in the record before the Court indicates

that this March 7, 2015 incident was the result of a broken comb plate or plates, or the result of

broken or missing comb plate teeth. See Pl.’s 56.1 ¶ 52.

Similarly, although Mr. Carrajat testified that he had obtained certain documents from the

New York City Department of Buildings and that these documents revealed “inspections that

were found to be ‘unsatisfactory’ for this particular escalator,” see Pl.’s 56.1 ¶ 81, this testimony

does not produce a genuine dispute of material fact as to constructive notice. Even accepting Mr.

Carrajat’s testimony on this issue as true, as the Court must do at this stage, that testimony does

not show that these “unsatisfactory” inspections resulted from the condition that allegedly caused

Plaintiff’s accident. And, regardless, Mr. Carrajat’s testimony on this point does not show that

any issue with the subject escalator giving rise to an “unsatisfactory” inspection went regularly

unaddressed.

The record evidence indicating that Thyssenkrupp “did not perform the required amount

of [preventative maintenance] per [its contract with Macy’s] and per industry standards,” Pl.’s

56.1 ¶ 88; see also Macy’s’ Ex. R at 7, also does not serve to create a genuine dispute of material

fact as to constructive notice. Whether Thyssenkrupp satisfied its contractual obligations to

Macy’s or rose to industry standards does not bear on whether Defendants regularly addressed

issues with the subject escalator’s comb plate or plates and comb plate teeth – and the undisputed

record evidence shows that they did.

Finally, the age of the subject escalator, see Pl.’s 56.1 ¶ 64, without some evidence that

its age put Defendants on notice of the condition that caused Plaintiff’s accident, is insufficient to

create a genuine dispute of material fact.

In sum, Defendants have demonstrated an absence of record evidence showing that either

of Defendants had constructive notice of a dangerous or defective condition with respect to the

subject escalator, and Plaintiff has failed to point to any evidence showing as much. There is no

genuine dispute of material fact as to this issue.

E. Res Ipsa Loquitur

Plaintiff argues that, even if Defendants are entitled to summary judgment on the issues

of creation and notice, this Court may deny Defendants’ summary judgment motions based on

the doctrine of res ipsa loquitur. See Pl.’s Br. at 16-25. The Court disagrees.

“Res ipsa loquitur is an often confused and often misused doctrine that enables a jury

presented only with circumstantial evidence to infer negligence simply from the fact that an

event happened.” Travco Ins. Co. v. Dinerman, No. 16-CV-01064, 2021 WL 1193391, at *8

(E.D.N.Y. Mar. 29, 2021) (quoting St. Paul Fire & Marine Ins. Co. v. City of New York, 907

F.2d 299, 302-03 (2d Cir. 1990)). The New York State Court of Appeals has characterized the

doctrine as “‘nothing more than a brand of circumstantial evidence,’ which ‘allows but does not

require the jury to infer that the defendant was negligent.’” Id. (emphasis in original) (quoting

Morejon v. Rais Const. Co., 7 N.Y.3d 203, 209, 211 (2006)). “The doctrine permits a plaintiff to

establish a prima facie case of negligence without proving the elements usually necessary to state

a negligence claim.” Flowers, 2001 WL 1590511, at *3.

“[I]n order to justify a res ipsa loquitur theory, a plaintiff must demonstrate that (1) the

event was of a kind which ordinarily does not occur in the absence of someone’s negligence; (2)

it was caused by an agency or instrumentality within the exclusive control of the defendant; and

(3) it was not due to any voluntary action or contribution on the part of the plaintiff.” Travco

Ins. Co., 2021 WL 1193391, at *8 (quoting Potthast v. Metro-N. R.R. Co., 400 F.3d 143, 149 (2d

Cir. 2005)); see also Flowers, 2001 WL 1590511, at *3 (collecting cases).

The doctrine of res ipsa loquitur does not preclude granting summary judgment to

Defendants here, because the record before the Court permits only one conclusion with respect to

the second prong of res ipsa loquitur: namely, that Defendants lacked “exclusive control” over

the instrumentality that caused Plaintiff’s alleged accident.17

In St. Paul Fire & Marine Insurance Company, the United States Court of Appeals for

the Second Circuit discussed the “exclusive control” requirement of res ipsa loquitur,

explaining:

The purpose of the exclusive control requirement is to eliminate within reason the

possibility that the event was caused by someone other than the defendant.

Accordingly, in order to establish exclusive control, the evidence must afford a

rational basis for concluding that the cause of the accident was probably such that

the defendant would be responsible for any negligence connected with it. Although

the possibility of all other causes need not be eliminated altogether, their likelihood

must be so reduced that the greater probability lies at defendant’s door. In other

words, to invoke the doctrine of res ipsa loquitur, the plaintiff must establish

control by the defendant of sufficient exclusivity to fairly rule out the chance that

the injury was caused by some agency other than defendant’s negligence.

907 F.2d at 302-03 (alteration accepted) (quotation marks omitted) (citations omitted). In

general, “it is not enough to prove that the defendant had control if there is sufficient evidence

17 Although the Court focuses its analysis on the “exclusive control” prong, the record before the

Court also does not permit the conclusion that Plaintiff’s alleged accident was of a kind that

ordinarily does not occur in the absence of someone’s negligence. See Lenigan v. Syracuse

Hancock Int’l Airport, No. 10-CV-01420, 2013 WL 149461, at *9 (N.D.N.Y. Jan. 14, 2013)

(observing, in case in which plaintiff claimed to have fallen while riding an escalator after the

escalator either jerked or grabbed her foot, that “New York courts have repeatedly found that

an accident of this type on an escalator could have occurred in the absence of negligence on

anyone’s part”).

that a third party also had access to the instrumentality that caused the injury.” Id. at 303. “For

this reason, ‘proof that third parties have had access to the instrumentality generally means that

the owner’s negligence cannot be inferred.’” Flowers, 2001 WL 1590511, at *4 (alteration

accepted) (quoting St. Paul Fire & Marine Ins. Co., 907 F.2d at 303); accord De Witt Properties,

Inc. v. City of New York, 44 N.Y.2d 417, 426 (1978).

Here, the record before the Court does not permit the conclusion that the instrumentality

that caused Plaintiff’s alleged accident was in Defendants’ exclusive control. There cannot be

any serious dispute that the public had “unfettered access” to an escalator located in a department

store in the Queens Center Mall. See Flowers, 2001 WL 1590511, at *5 (“There cannot be any

serious dispute that the public had ‘unfettered access’ to the baggage claim area of the Delta

terminal at LaGuardia airport.” (quotation marks omitted)). Indeed, Mr. Carrajat’s deposition

testimony itself indicates that the escalator at issue was subject to “heavy usage.” Macy’s’ Ex. T

at 53; see also Pl.’s 56.1 ¶ 64.

Ebanks v. New York City Transit Authority is particularly instructive on the issue of

exclusive control in escalator accident cases. 70 N.Y.2d 621 (1987). There, the plaintiff was

injured when he caught his foot in a gap between an escalator step and sidewall. Id. at 622. At

trial, the jury was instructed that it could use the doctrine of res ipsa loquitur to infer that the

defendant was liable in maintaining the escalator. Id. at 623. In setting aside the subsequent

judgment in favor of the plaintiff, the New York State Court of Appeals explained that:

The proof did not adequately refute the possibility that the escalator – located in a

subway station used by approximately 10,000 persons weekly – had been damaged

by a member of the public either through an act of vandalism or, as defendant’s

witness suggested, by permitting an object such as a hand truck to become caught

in the space between the step and sidewall.

Id. In reaching this conclusion, the Court of Appeals cited its previous holding in Dermatossian

v. New York City Transit Authority, 67 N.Y.2d 219 (1986). See Ebanks, 70 N.Y.2d at 623 (citing

Dermatossian, 67 N.Y.2d at 226-28)). In Dermatossian, the New York Court of Appeals held

that the New York City Transit Authority could not be held liable for an injury caused by a

defective grab handle on a bus that was “continuously available for use by defendant’s

passengers.” Dermatossian, 67 N.Y.2d at 228.

Courts in this Circuit have invoked Ebanks in granting summary judgment to defendants

in escalator accident cases in which the plaintiff sought to proceed under a theory of res ipsa

loquitur. In Rivera v. National Passenger Railroad Service, for example, the plaintiff sued for

injuries allegedly sustained by her minor daughter when the leg of the daughter’s jeans became

lodged in the “metal grating” at the bottom of an escalator in New York City’s Pennsylvania

Station. 442 F. Supp. 2d 164, 166 (S.D.N.Y. 2006). The Rivera court granted summary

judgment to the defendant and, in so doing, rejected the notion that the plaintiff could prevail

under a theory of res ipsa loquitur, specifically because the plaintiff “ha[d] not provided

evidence that could serve as the basis for a finding that the [escalator’s] cover plates were in [the

defendant’s] ‘exclusive control’ prior to the accident.” Id. at 169; see also Lenigan, 2013 WL

149461, at *9 (granting defendants’ summary judgment motions in an escalator injury case after

explaining that “New York courts have repeatedly found . . . evidence of an extensive amount of

public contact on a daily basis to be, in and of itself, sufficient to preclude the application of the

doctrine of res ipsa loquitur in personal injury cases arising from escalators that suddenly jerked,

shook and/or stopped”).

Plaintiff implicitly acknowledges that these cases’ core reasoning applies here, apparently

conceding that the subject escalator’s comb plate or plates, or comb plate teeth, could have been

“damaged by someone dropping something on it.” Pl.’s Br. at 21-22. Indeed, Mr. Carrajat

acknowledged in his deposition that, “[i]n this kind of environment, this kind of store,” a broken

comb could be caused by debris or by someone “drop[ping] a package or wheel[ing] a cart onto a

unit,” and that a broken comb does not “always have to be something relating to the device

itself.” Macy’s’ Ex. T at 101; see also Pl.’s 56.1 ¶ 72.

However, Plaintiff argues that “the question is not whether the public had access to

combplate or combfingers, but rather whether the mechanism that malfunctioned was generally

handled by the public.” Pl.’s Br. at 21-22 (emphasis added). Here, Plaintiff appears to be

referring to her three (unsupported) alternative theories as to how her injury occurred, at least

some of which appear to implicate certain of the subject escalator’s inner mechanisms. See Pl.’s

56.1 ¶ 63 (referring to “worn rollers” and “improper adjustment of the step chain”). In support

of her argument, Plaintiff marshals several elevator cases, see Pl.’s Br. at 21-24, including, for

example, Kleinberg v. City of New York, 877 N.Y.S.2d 23 (1st Dep’t 2009), and Ianotta v.

Tishman Speyer Properties, Inc., 852 N.Y.S.2d 27 (1st Dep’t 2007).

Plaintiff’s argument misunderstands the “exclusive control” inquiry, the purpose of

which “is to eliminate within reason the possibility that the event was caused by someone other

than the defendant.” St. Paul Fire & Marine Ins. Co., 907 F.2d at 302. Plaintiff has repeatedly

argued that her injuries were the result of a broken comb plate or plates, or broken or missing

comb plate teeth. See, e.g., Pl.’s Br. at 2 (referencing “issues involving the comb plate and teeth

of th[e] escalator”), 11 (referencing “multiple broken combplates at the bottom of the escalator”),

13 (referencing “broken or missing combfingers”); Pl.’s 56.1 ¶ 72 (referencing potential

causation of a “broken comb plate”). Indeed, Plaintiff’s briefing itself refers at one point to “the

mechanism in question” as “combplate teeth and switch.” See Pl.’s Br. at 21. And, as Plaintiff

appears to acknowledge, even drawing all reasonable inferences against Defendants, the instant

record shows that a member of the public could have damaged the subject escalator’s comb plate

or plates, or comb plate teeth. See id. at 21-22; see also Rivera, 442 F. Supp. 2d at 169

(considering whether the escalator’s “cover plates were in [the defendant’s] ‘exclusive control’

prior to the accident”). Thus, even if the evidence before the Court indicated that an issue with

some internal mechanism of the subject escalator (i.e., one outside the public’s reach)

contributed to Plaintiff’s alleged accident – which, as explained above, the evidence does not

indicate – the instant record nevertheless would not adequately rule out the conclusion that the

public could have separately caused an issue with the subject escalator’s comb plate or plates, or

comb plate teeth, that resulted in Plaintiff’s accident. See Rivera, 442 F. Supp. 2d at 169. The

record before the Court does not permit the conclusion that any negligence in this case “lies at

defendant’s door,” instead of with some individual who may have damaged the subject

escalator’s comb plate or plates. See Flowers, 2001 WL 1590511, at *5 (quotation marks

omitted).

For the same reasons, Plaintiff’s elevator cases are inapposite. Each of those cases

concerned injuries caused by a mechanism or mechanisms more conclusively beyond the

public’s reach. See Kleinberg, 877 N.Y.S.2d at 26 (addressing “a free-falling elevator”

potentially caused by the lack of “an over-speed governor”); Ianotta, 852 N.Y.S.2d at 29 (noting

public’s lack of “access to the[] mechanisms designed to make the [subject elevator’s] doors

retract”); see also Stone v. Courtyard Mgmt. Corp., 353 F.3d 155, 158 (2d Cir. 2003) (“The

public did not ‘generally handle’ the motor, micro-processor, sensors, or control box at issue in

this case [which concerned a hotel’s interior automatic doors], each of which was either

embedded in doorframes or otherwise out of the public’s normal reach as they passed through

the open doors.”).

In sum, Plaintiff cannot establish on the instant record that the instrumentality that caused

her alleged accident was within Defendants’ exclusive control, and there is no genuine dispute of

material fact precluding summary judgment as to this issue.18

F. The Carrajat Affidavit

Finally, the affidavit of Mr. Carrajat submitted in connection with the instant motions

does not give rise to a genuine dispute of material fact with respect to any of the conclusions on

which the Court bases its decision, because the Court does not consider those portions of Mr.

Carrajat’s affidavit that contain opinions beyond those expressed in Mr. Carrajat’s original

expert report.19

Mr. Carrajat’s affidavit is, in essence, a supplemental expert report that aims “to produce

a more thorough and stronger report than he previously produced.” Richman v. Respironics,

18 Pacella v. Resorts Casino Hotel, No. 07-CV-04424, 2007 WL 2873651 (E.D.N.Y. Sept. 28,

2007), has no bearing on the exclusive control analysis here. In Pacella, the court held that

the two defendants – there, a hotel and a company responsible for the maintenance of the

hotel’s escalators – were in exclusive control of an escalator that allegedly caused the plaintiff

to fall. Id. at *6. However, the issue with respect to exclusive control in Pacella was whether

either defendant could disclaim liability on the theory that the other defendant’s role with

respect to the subject escalator barred the plaintiff from showing exclusive control. See id.

The Pacella court was not called upon to decide – and did not decide – whether the escalator

at issue or the specific escalator component that gave rise to the alleged accident was

sufficiently accessible to the public such that the defendants lacked exclusive control over it.

Linwood v. Schindler Elevator Corp., No. 16-CV-01020, 2019 WL 5722110 (S.D.N.Y. Jan.

25, 2019), report and recommendation adopted, ECF No. 97 (S.D.N.Y. Apr. 5, 2019), on

which Plaintiff relies – see Pl.’s Br. at 16 – is similarly distinguishable. There, the court

rejected the argument that a corporation responsible for maintaining and servicing a store’s

elevator equipment lacked exclusive control over the store’s elevators because a non-party

maintained some degree of control over the elevators. Linwood, 2019 WL 5722110, at *2,

*11. As with Pacella, the Linwood decision did not address how the public’s access to the

elevators affected the exclusive control analysis.

19 Additionally, Mr. Carrajat’s affidavit is full of the sort of “mere speculation” and “vague,

conclusory and factually unsupported” assertions that do not suffice to create a genuine

dispute of material fact precluding summary judgment, Skidd, 2010 WL 2834890, at *5

(quotation marks omitted). See, e.g., Carrajat Aff. ¶ 18 (“Macy’s as part of its duty to

maintain a safe premise failed to supervise [Thyssenkrupp] to ensure the escalator was even

Inc., No. 08-CV-09407, 2012 WL 13102265, at *10 (S.D.N.Y. Mar. 13, 2012). The affidavit is

plainly “designed to fill significant gaps” in Mr. Carrajat’s original expert report. Id. For

example, it is only in the affidavit – submitted after Plaintiff had received Defendants’ summary

judgment briefing – that Mr. Carrajat first articulates, inter alia: that “[r]eplacing the [subject

escalator’s] combfingers, without determining why they are breaking is negligent practice on the

part of [Thyssenkrupp],” Carrajat Aff. ¶ 22; that “[i]t is apparent that there is no preventive

maintenance being performed,” id. ¶ 55; that “5 service outages a month are not common and are

a sign of a lack of proper care and maintenance, id. ¶ 57; and that “there was no effort to

determine why [the subject escalator’s combfingers] were breaking on a regular basis,” id.

Similarly, Mr. Carrajat submits in his affidavit – for the first time – that a photograph taken on

the day of the accident “clearly shows missing combfingers on both the right and left ends of the

escalator,” id. ¶ 13, an assertion diametrically opposed to Mr. Carrajat’s prior deposition

testimony that photographs taken of the subject escalator right after Plaintiff’s alleged accident

do not show missing or broken comb plate teeth, see Macy’s’ Ex. T. at 131-32; 134-35.

Rule 26 of the Federal Rules of Civil Procedure contains various provisions governing

expert disclosure. See generally Fed. R. Civ. P. 26(a)(2). “The duty to disclose information

concerning expert testimony is intended to allow opposing parties to have a reasonable

opportunity to prepare for effective cross examination and, perhaps, arrange for expert testimony

being minimally serviced.”), ¶ 22 (“Replacing the [subject escalator’s] combfingers, without

determining why they are breaking is negligent practice on the part of [Thyssenkrupp].”),

¶ 66(h) (“Macy’s and [Thyssenkrupp] were in shared exclusive control of the escalator.”); see

also Skidd, 2010 WL 2834890 at *5-6 (rejecting at summary judgment stage as “mere

speculation” portions of an affidavit submitted by Mr. Carrajat in a case regarding an alleged

elevator accident); Meade, 2017 WL 6509259, at *6-7 (rejecting at summary judgment stage

certain testimony of Mr. Carrajat and certain portions of an affidavit submitted by Mr. Carrajat

in an elevator accident case).

from other witnesses.” See Morritt v. Stryker Corp., No. 07-CV-02319, 2011 WL 3876960, at

*5 (E.D.N.Y. Sept. 1, 2011) (alteration accepted) (quotation marks omitted). Although Rule

26(e) provides for the supplementing or correcting of expert reports, it “does not grant a license

to supplement a previously filed expert report because a party wants to, but instead imposes an

obligation to supplement the report when a party discovers the information it has disclosed is

incomplete or incorrect.” Richman, 2012 WL 13102265, at *10 (quotation marks omitted); see

also Sandata Techs., Inc. v. Infocrossing, Inc., No. 05-CV-09546, 2007 WL 4157163, at *5 n.5

(S.D.N.Y. Nov. 16, 2007) (“The word ‘incomplete’ in Rule 26(e) cannot be expanded to permit a

constant stream of ‘new’ information that was available at the time of the initial report, but not

included because of a lack of due diligence.”).

“[E]xperts are not free to continually bolster, strengthen, or improve their reports by

endlessly researching the issues they already opined upon, or to continually supplement their

opinions. If that were the case, there would never be any closure to expert discovery, and parties

would need to depose the same expert multiple times.” Richman, 2012 WL 13102265, at *10

(quotation marks omitted). “[C]ourts will not admit supplemental expert evidence following the

close of discovery when it expounds a wholly new and complex approach designed to fill a

significant and logical gap in the first report, as doing so would eviscerate the purpose of the

expert disclosure rules.” Morritt, 2011 WL 3876960, at *5 (alteration accepted) (quotation

marks omitted); see also Silivanch v. Celebrity Cruises, Inc., 171 F. Supp. 2d 241, 256 (S.D.N.Y.

2001) (noting preclusion of expert testimony that was not disclosed during expert discovery).

“Expert testimony exceeding the bounds of [an] expert’s report is excludable pursuant to

[Federal Rule of Civil Procedure] 37(c)(1).” Morritt, 2011 WL 3876960, at *5 (quotation marks

omitted).

Plaintiff’s attempt to supplement Mr. Carrajat’s expert report via affidavit constitutes a

violation of Rule 26. The Court therefore considers whether to exercise its discretion to exclude

Mr. Carrajat’s affidavit under Rule 37(c)(1). In this inquiry, the Court considers: (1) Plaintiff’s

“explanation for the failure to comply with the [disclosure requirement]; (2) the importance of

the testimony of the precluded witness[]; (3) the prejudice suffered by the opposing party as a

result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.”

Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (first alteration in original) (quotation

marks omitted).

Having considered and weighed each of these factors as applied here, the Court

concludes that these factors counsel heavily in favor of excluding Mr. Carrajat’s affidavit, at

least insofar as it contains opinions beyond those expressed in Mr. Carrajat’s original expert

report. See Morritt, 2011 WL 3876960, at *8 (collecting cases). Of particular significance here,

Plaintiff has offered no justification whatsoever for her “failure to comply with the expert

disclosure requirements.” See id. at *6. This factor weighs very strongly in favor of exclusion.

See id. Furthermore, the facts that discovery closed many months ago, see January 12, 2021

Order (setting discovery deadline of February 26, 2021), and that this case has been pending for

over five years also “weigh[] strongly against the possibility of a continuance.” Richman, 2012

WL 13102265, at *11 (quotation marks omitted).

The Court cannot conclude that Plaintiff’s failure to comply with the requirements of

Rule 26 was either “substantially justified” or “harmless.” See Fed. R. Civ. P. 37(c)(1). Mr.

Carrajat’s affidavit is excluded insofar as it contains opinions beyond those expressed in Mr.

Carrajat’s original expert report, pursuant to Rule 37(c)(1). See Morritt, 2011 WL 3876960, at

*8. Without those new opinions, Mr. Carrajat’s affidavit does not create a genuine dispute of

material fact as to the issues on which the Court has based its analysis.20 See Morritt, 2011 WL

3876960, at *8.

* * *

In sum, Plaintiff cannot prevail under a traditional theory of negligence because the

record evidence properly before the Court does not permit the conclusion that Macy’s or

Thyssenkrupp either created or had actual or constructive notice of the condition that Plaintiff

claims caused the alleged accident. Plaintiff also cannot proceed under the doctrine of res ipsa

loquitur because the record evidence properly before the Court does not permit the conclusion

that Macy’s or Thyssenkrupp had “exclusive control” over the instrumentality that caused

Plaintiff’s alleged accident.

Defendants are therefore entitled to summary judgment on Plaintiff’s negligence claims,

and those claims are dismissed in their entirety. Because Defendants’ cross-claims against one

another for contribution and indemnification are contingent on Plaintiff’s negligence claims,

Defendants’ cross-claims also are dismissed.

CONCLUSION

For the reasons set forth above, Macy’s’ Motion for Summary Judgment, ECF No. 68,

and Thyssenkrupp’s Motion for Summary Judgment, ECF No. 70, are GRANTED and,

20 With respect to Mr. Carrajat’s assertion that a photograph taken on the day of the accident

“clearly shows missing combfingers on both the right and left ends of the escalator,” Carrajat

Aff. ¶ 13, the Court notes that this assertion derives exclusively from Mr. Carrajat’s affidavit

and that there is no other record evidence properly before the Court that supports this

assertion. Without the affidavit to support this assertion, the only record evidence before the

Court as to photographic evidence regarding Plaintiff’s alleged accident – and, specifically,

whether that photographic evidence reveals a broken comb plate or plates, or missing or

broken comb plate teeth – is Mr. Carrajat’s deposition testimony that photographs taken of the

subject escalator right after Plaintiff’s alleged accident do not show missing or broken comb

plate teeth. See Macy’s’ Ex. T. at 131-32; 134-35.

accordingly, Plaintiff’s Complaint and Macy’s’ and Thyssenkrupp’s cross-claims are

DISMISSED.

The Clerk of Court is respectfully directed to enter judgment accordingly and to close the

case.

SO ORDERED.

/s/ Diane Gujarati _

DIANE GUJARATI

United States District Judge

Dated: December 8, 2021

Brooklyn, New York