Akter v. Target Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SHIRIN AKTER,

Plaintiff,

MEMORANDUM & ORDER

- against - 22-CV-707 (PKC) (JRC)

TARGET CORPORATION,

Defendant.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Shirin Akter (“Plaintiff” or “Akter”) brings this lawsuit against Defendant Target

Corporation (“Defendant”) for injuries that she alleges she suffered when she slipped and fell.1

Defendant has moved for summary judgment, asserting that Plaintiff has failed to advance

sufficient evidence to make out a prima facie case of negligence. For the reasons discussed below,

the Court grants Defendant’s motion and terminates this action.

BACKGROUND

I. Relevant Facts2

On August 30, 2020, Plaintiff visited the Queens Place Mall, located at 8801 Queens

Boulevard, in Queens, New York (the “Queens Place Mall” or the “Mall”), with her son, MD Akter

1 The location of Plaintiff’s slip-and-fall is unclear. See infra Discussion.

2 Unless otherwise noted, a standalone citation to a party’s Local Rule 56.1 statement

denotes that this Court has deemed the underlying factual allegation undisputed. Any citation to

a 56.1 statement incorporates by reference the documents cited therein; where relevant, however,

the Court may cite directly to an underlying document. See Local Rules of the United States

District Courts for the Southern and Eastern Districts of New York 56.1(c)–(d). The Court

construes any disputed facts in the light most favorable to Plaintiff, as the non-moving party, for

purposes of Defendant’s summary judgment motion. See Estate of Gustafson ex rel. Reginella v.

Target Corp., 819 F.3d 673, 675 (2d Cir. 2016).

(“MD”), and his wife, Tanya Akter (“Tanya”).3 (Pl.’s 56.1 ¶¶ 3–5, 10.) What happened after

Plaintiff and her family members arrived at the Mall is unclear. Plaintiff claims, albeit

inconsistently, that she slipped and fell “opposite” one of Defendant’s stores (“Target”), which is

located on the third and fourth floors of the Mall. (Id. ¶¶ 3–6; Pl.’s Response to Interrogs., Dkt.

23-8, ¶ 3. But see Tr. of Plaintiff Dep., Dkt. 23-6 (“Pl. Dep. Tr.”), at 21:14–17 (Plaintiff unsure

what floor she was on when she fell), 29:11–13 (Plaintiff fell “next to the carpet store” on the

second floor of the Mall), 30:8–12 (MD and Tanya “were in the next store” when she fell), 31:13–

17 (MD and Tanya “were in the same store towards one side of that store” when Plaintiff fell),

37:9–11 (the accident happened in a carpet store).) But MD claims, in substance, that he found

his mother on the floor a few feet from the baby section inside Target. (See Pl.’s 56.1 ¶¶ 34–35;

Tr. of MD Dep., Dkt. 23-11 (“MD Dep. Tr.”), at 49:6–9, 60:9–61:24, 65:11–12 (testifying that he

found his mother near “things to do with carpets . . . next to the baby section”). But see Pl.’s Sept.

12, 2022 Ltr., Dkt. 23-10, at 1 (MD “confirmed that the incident did in fact take place adjacent to

Target on the 4th floor at the shopping plaza”).) Plaintiff does not know what she slipped on and

did not see anything on the floor before she fell. (Pl.’s 56.1 ¶¶ 19–20.) She did not observe anyone

from the Mall cleaning before the accident or waxing the floor, or observe anything different about

the location where she fell compared to other nearby areas. (Id. ¶¶ 21–23.) Plaintiff and her family

members did not report the accident to Target before leaving the store. (Id. ¶ 37.)

3 The Complaint refers to the date as August 30, 2020, (Compl., Dkt. 1-2 (“Compl.”), ¶¶

3–6), but in a separate complaint filed by Plaintiff against the owner of the Mall, Plaintiff alleges

that she fell on August 31, 2020, (Pl.’s Rule 56.1 Response and Statement of Additional Facts

(“Pl.’s 56.1”), Dkt. 21-1, ¶¶ 1–2). Additionally, the Complaint refers to the location as the “Queens

Plaza Mall,” (Compl. ¶¶ 5–6), but in the parties’ Local Rule 56.1 statements, the parties refer to

the location as the “Queens Place Mall,” (Pl.’s 56.1 ¶¶ 1–2, 10). Based on the undisputed facts in

this matter, the Court construes the relevant date as August 30, 2020, and the location as the

“Queens Place Mall.”

On November 4, 2020, Stanley Fein (“Fein”), a professional engineer retained by Plaintiff,

conducted an inspection of the floor leading from the Mall’s parking garage to Target. (Id. ¶ 25.)

Fein produced a report, dated November 11, 2020, which states that Plaintiff “slipped and fell

adjacent to the Target store” and references two photographs of the location where Plaintiff fell.

(Id. ¶ 26.) The two photographs show a vinyl-tiled hallway near the exit of Target. (Id. ¶ 27.)

II. The Instant Litigation

On January 13, 2022, Plaintiff filed this lawsuit in the Supreme Court of the State of New

York, Queens County, alleging that Defendant was negligent. (See generally Compl.) On

February 8, 2022, Defendant removed Plaintiff’s lawsuit from state court to this Court. (Dkt. 1.)

On February 11, 2022, Defendant answered the Complaint. (Dkt. 4.)

The parties proceeded to discovery. On April 12, 2022, Plaintiff provided Defendant with

a copy of Fein’s report, (Dkt. 8 at 2), and on May 16, 2022, Plaintiff served sworn interrogatory

responses stating that “Plaintiff is unaware of any witnesses” to the accident, (Pl.’s 56.1 ¶¶ 29–

30).

On May 23, 2022, Defendant filed a motion to preclude Fein’s report because, among other

reasons, Fein’s conclusion that “[t]he subject floor,” which was “polished to a very high sheen,”

“does not give proper traction and was the proximate cause of the accident and injuries sustained

by [Plaintiff],” was “speculative” based on Fein’s inspection of the floor more than two months

following the accident. (Dkt. 8 at 1, 3; Dkt. 8-1 at ECF 4.4) Magistrate Judge James R. Cho denied

the motion as premature, with leave to refile. (6/10/2022 Minute Order.)

4 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

On August 23, 2022, Plaintiff was deposed. (See generally Pl. Dep. Tr.) At Plaintiff’s

deposition, she could not recognize the photos of the vinyl floor from Fein’s report. (Pl.’s 56.1 ¶

28.)

On September 12, 2022, Plaintiff served Defendant with a letter stating that MD was a

witness. (Id. ¶ 32.) MD was subsequently deposed on November 14, 2022. (See generally MD

Dep. Tr.)

On December 13, 2022, after MD’s deposition, Plaintiff’s counsel served Defendant with

a letter, dated December 5, 2022, and two additional photographs, stating that MD “recently

forwarded [the] photographs to my office” and that they “depict the area where the incident took

place.” (Pl.’s 56.1 ¶ 38.) The letter further stated that Fein’s report pertained to a different area

and advised that Plaintiff was withdrawing Fein’s expert opinion relating to the condition of the

floor. (Id. ¶ 39; Pl.’s Dec. 5, 2022 Ltr., Dkt. 23-12 (“Pl.’s Dec. 5, 2022 Ltr.”), at 1.)

After discovery, Defendant stated its intention to move for summary judgment, and the

Court set a briefing schedule. (See 1/13/2023 Docket Order.) On March 14, 2023, Defendant

served its motion for summary judgment on Plaintiff. (Mem. of Law in Supp. of Def.’s Mot. for

Summ. J., Dkt. 23-13 (“Def.’s Mem.”).) On April 19, 2023, Plaintiff served her papers in

opposition. (Mem. of Law in Opp’n to Def.’s Mot. for Summ. J., Dkt. 21-2 (“Pl.’s Opp’n”).) On

April 28, 2023, Defendant served its reply. (Def.’s Reply Mem. of Law, Dkt. 23-14 (“Def.’s

Reply”).)

LEGAL STANDARD

Summary judgment is proper only where “there is no genuine issue as to any material fact

and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The mere

existence of some factual dispute between the parties will not defeat a motion for summary

judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rather, a genuine issue

of material fact exists “where the evidence is such that a reasonable jury could decide in the

nonmovant’s favor.” Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74 (2d Cir. 2016). The Court

resolves all factual ambiguities and draws all permissible inferences in favor of the nonmoving

party. See Estate of Gustafson, 819 F.3d at 675.

Initially, the movant must demonstrate the absence of a genuine issue of material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A movant may demonstrate the absence of a

material factual dispute by pointing to the lack of evidence in support of an essential element of

the plaintiff’s claim. Souza v. Exotic Island Enters., Inc., 68 F.4th 99, 108 (2d Cir. 2023). Once

the movant has met its burden, the nonmovant must present specific facts showing that there is a

genuine issue for trial. Id. If “little or no evidence may be found in support of the nonmoving

party’s case,” summary judgment is proper. Gallo v. Prudential Residential Servs., Ltd. P’ship,

22 F.3d 1219, 1223–24 (2d Cir. 1994); accord Ockimey v. Hempstead, 425 F. App’x 45, 45 (2d

Cir. 2011) (summary order).

DISCUSSION

Defendant argues that summary judgment is proper because Plaintiff “is unable to provide

any evidence of a hazardous condition.” (Def.’s Mem. 1); see Lionel v. Target Corp., 44 F. Supp.

3d 315, 319 (E.D.N.Y. 2014). The Court agrees.

To succeed on a negligence claim, a plaintiff must show “(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) (quoting Solomon v. City of N.Y., 489 N.E.2d

1294 (N.Y. 1985)).5 In a slip-and-fall case, the plaintiff’s “burden . . . is not merely to proffer a

plausible theory, but to present evidence from which a reasonable jury could draw the inference

that [the] defendant created the hazardous condition.” See Lionel, 44 F. Supp. 3d at 319 (citing

Tenay v. Culinary Tchrs. Ass’n of Hyde Park, 281 F. App’x 11, 13 (2d Cir. 2008) (summary

order)); see also Strass v. Costco Wholesale Corp., No. 14-CV-6924 (PKC) (VMS), 2016 WL

3448578, at *3 (E.D.N.Y. June 17, 2016) (“[T]he 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.” (quoting Lionel, 44 F. Supp. 3d at 318 (emphasis omitted))).

Even construing the evidence in the light most favorable to Plaintiff, as the Court must, no

reasonable jury could conclude that Defendant created a dangerous condition, as required to find

Defendant liable for negligence. Susana v. NY Waterway, 662 F. Supp. 3d 477, 492 (S.D.N.Y.

2023) (“[B]ecause there is no evidence from which a reasonable jury could conclude that Plaintiff

tripped due to a dangerous or defective condition, her negligence claim fails as a matter of law.”);

Lionel, 44 F. Supp. 3d at 320 (granting summary judgment to defendant where “the absence

of . . . tangible evidence to support Plaintiff’s theory[] [was] insufficient to permit a reasonable

jury to find that Defendant[] . . . created [a] hazard”).

As a preliminary matter, the Court notes Plaintiff’s numerous inconsistent allegations

regarding the location where she fell. Indeed, as Defendant observes, Plaintiff has identified

several different locations as the site of the accident over the course of this litigation—including

locations outside the Target. (Def.’s Reply 4; see, e.g., Pl.’s 56.1 ¶ 3 (noting undisputed fact that

5 The Court applies federal procedural law to determine whether Defendant is entitled to

summary judgment, but New York substantive law as to the elements of Plaintiff’s claim. See

Urrutia v. Target Corp., 681 F. App’x 102, 104 (2d Cir. 2017) (summary order) (citing Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938)).

the Complaint alleges that Plaintiff slipped and fell “opposite Target”); id. ¶ 26 (noting undisputed

fact that Fein report stated that “[P]laintiff ‘slipped and fell adjacent to the Target store’”)6; Pl.’s

Response to Interrogs., Dkt. 23-8 ¶ 3 (“The occurrence took place . . . opposite Target.”); MD Dep.

Tr. at 49:6–9, 60:9–61:24, 65:4–12 (testifying that MD found his mother inside the Target near

“things to do with carpets that is next to the baby section” on the fourth floor); Pl. Dep. Tr. at

21:14–15 (Plaintiff’s testimony that “I’m not sure what floor it was on in the mall [where she

fell]”), 29:3–13 (Plaintiff’s testimony that she fell “next to the carpet store” on the second floor of

the Queens Place Mall), 30:8–12 (Plaintiff’s testimony that MD and Tanya “were in the next store”

when she fell), 31:13–17 (Plaintiff’s testimony that MD and Tanya “were in the same store towards

one side of that store” when Plaintiff fell), 37:9–11 (“Q. Did your accident happen in the carpet

store? A. Yes, yes.”); Pl.’s Sept. 12, 2022 Ltr., Dkt. 23-10, at 1 (stating that MD “confirmed that

the incident did in fact take place adjacent to Target on the 4th floor at the shopping plaza”); Pl.’s

Dec. 5, 2022 Ltr. at ECF 3–4 (depicting section of floor inside Target); see also Def.’s Mem. 1;

Def.’s Reply 4.)

Ultimately, however, the Court is bound at summary judgment to construe the facts in the

light most favorable to Plaintiff. See Estate of Gustafson, 819 F.3d at 675. Plaintiff has presented

at least some evidence that she fell inside Target. (See MD Dep. Tr. at 49:6–9, 60:9–61:24, 65:11–

12); see also Castellanos v. Target Dep’t Stores, Inc., No. 12-CV-2775 (GWG), 2013 WL

4017166, at *3 (S.D.N.Y. Aug. 7, 2013) (finding that plaintiff’s sworn statements as to what she

saw when she slipped “are sufficient at the summary judgment phase”). Thus, for purposes of

6 Plaintiff’s decision to not rely on Fein’s expert opinion does not negate Fein’s findings

or its import with respect to the Court’s determination of whether there exists a genuine issue as

to any material fact. Fed. R. Civ. P. 56(a); see Walsh, 828 F.3d at 74 (stating that genuine issue of

material fact exists “where the evidence is such that a reasonable jury could decide in the

nonmovant’s favor”).

Defendant’s summary judgment motion, the Court assumes without deciding that Plaintiff fell

inside the Target store.7

Nevertheless, the Court must grant summary judgment to Defendant because Plaintiff has

failed to present any evidence of a dangerous condition. Susana, 662 F. Supp. 3d at 490 (granting

summary judgment to defendant where plaintiff could not “establish the existence of a dangerous

condition or defect, . . . [by] point[ing] to a specific condition that caused her injury”); see Lionel,

44 F. Supp. 3d at 320 (“Plaintiff’s theory, while plausible, is not supported by any evidence and

thus speculative and insufficient to defeat summary judgment.”). It is undisputed that Plaintiff

does not know what she slipped on and did not see anything on the floor before she fell. (Pl.’s

56.1 ¶¶ 19–20.) Alone, this is not fatal to Plaintiff’s claims, as she could prove the existence of a

dangerous condition through admissible evidence. (See Pl.’s Opp’n 6 (citing Hoovis v. Grand City

99 Cents Store, Inc., 45 N.Y.S.3d 524, 525 (N.Y. App. Div. 2017) (only a “plaintiff’s inability to

establish the cause of his or [her] fall—whether by personal knowledge or by other admissible

proof—is fatal to a cause of action based on negligence”)); id. at 10 (citing Seixas v. Target Corp.,

No. 15-CV-3851 (ERK) (RML), 2017 WL 2178425, at *3 (E.D.N.Y. May 16, 2017) (denying

summary judgment for defendant based on photographs showing a dangerous condition of liquid

spilled on the floor).) But Plaintiff has failed to present such evidence. While Plaintiff argues that

7 The Court notes that, “[a]s a general matter, a court will not make credibility

determinations on a motion for summary judgment.” Hernandez v. Kirby Forensic Psychiatric

Hosp., No. 14-CV-5910 (AJN), 2019 WL 4640054, at *2 (S.D.N.Y. Sept. 24, 2019). Here, the

Court avoids doing so by assuming that, despite Plaintiff’s contradictory testimony, Plaintiff fell

inside Target. See Estate of Gustafson, 819 F.3d at 675. However, to the extent that Plaintiff

attempts to explain the inconsistencies in Plaintiff’s testimony by pointing out that she is an elderly

“Bangladeshi Muslim noncitizen, . . . [who] does not speak English, has a middle school level

education, and has impaired memory from a brain injury she sustained in an accident in Bangladesh

before she came to the United States,” (Pl.’s Opp’n at 2), those facts certainly do not bolster her

credibility and would only serve to undermine the weight any jury would give her testimony at

trial.

MD’s photographs “depict a shiny vinyl tile floor that looks substantially the same as the floor

depicted in [Fein’s earlier] photos, which was determined to be dangerously slippery,” (Pl.’s Opp’n

10 (referencing Pl.’s Dec. 5, 2022 Ltr.)), the photographic evidence cannot show that a dangerous

condition existed for two reasons.

First, although Plaintiff’s December 5, 2022 letter providing MD’s photos to Defendant

stated that the photos were “recent[],” (Pl.’s 56.1 ¶ 38), there is no evidence that MD’s photographs

show the condition of the floor at the time of the accident, (see Def.’s Reply 6 (noting that Plaintiff

“is asking the Court to speculate that the different location of floor [in MD’s photographs] was in

the same exact condition at the moment of her accident, as it was three months later when it was

inspected by [Fein]”)). Indeed, Plaintiff offers no testimony or declaration from MD attesting to

when he purportedly took the photos. Plaintiff’s pure speculation that a dangerous condition

existed when she fell is insufficient to prevent summary judgment. See, e.g., Lionel, 44 F. Supp.

3d at 320; Brown v. Reinauer Transp. Cos., L.P., No. 16-CV-3998 (LDH) (PK), 2018 WL

9986677, at *2 (E.D.N.Y. Sept. 26, 2018) (granting summary judgment to defendant where

plaintiff did not “see,” “feel,” or “know” what caused him to fall, and thus “merely speculated the

cause of his fall”), aff’d, 788 F. App’x 47 (2d Cir. 2019); Saccenti v. Target Corp., No. 20-CV-

4098 (BMC), 2021 WL 2716644, at *1 (E.D.N.Y. July 1, 2021) (granting summary judgment to

defendant based on plaintiff’s presentation of “nothing but speculation”); Yates v. Costco

Wholesale Corp., No. 19-CV-4023 (ENV) (RLM), 2021 WL 9409159, at *7–8 (E.D.N.Y. June 30,

2021) (granting summary judgment for defendant where “[t]he photographs in the record [were]

unhelpful” as they were “taken in the moments and months after the incident”); Goldin v. Riverbay

Corp., 889 N.Y.S.2d 557, 559–60 (N.Y. App. Div. 2009) (granting summary judgment where

“[t]he affidavit of plaintiff’s expert engineer lack[ed] evidence in admissible form providing a

foundational basis for the expert’s opinion that the floor he inspected three months after the

accident was in the same condition as it was on the day of the accident”).

Second, while Plaintiff initially presented evidence through her expert, Fein, that the floor

was “polished to a very high sheen” that “[did] not give proper traction,” that evidence has since

been withdrawn. (Pl.’s 56.1 ¶ 39; see Dkt. 8-1 at ECF 4.) With the withdrawal of Fein’s opinion,

there is no evidence that the floor depicted in either Fein’s or MD’s photos was dangerously

slippery.8 (Pl.’s Opp’n 3 (relying solely on withdrawn Fein report to assert that “the vinyl tiles

were polished to a very high sheen with a coefficient of friction below the levels accepted by

engineering safety practices”); id. at 10 (“[T]he expert retained by [Plaintiff’s] lawyers examined

a different part of the floor, which he found to be dangerously slippery under industry safety

standards.” (emphasis added)).9) Absent that evidence and given the undisputed fact that Plaintiff

saw nothing on the floor and did not know what she slipped on, Plaintiff has not carried her burden

“to present evidence from which a reasonable jury could draw the inference that Defendant created

the hazardous condition.” See Lionel, 44 F. Supp. 3d at 319; Espriel v. Starbucks Corp., No. 20-

8 Although Plaintiff argues that the floor was “shiny,” (Pl.’s Opp’n 10), the mere fact that

a floor is “shiny,” absent evidence that the floor was negligently waxed or polished, does not

preclude summary judgment. See Khaimova v. Osnat Corp., 799 N.Y.S.2d 779, 779 (N.Y. App.

Div. 2005) (“In the absence of evidence of a negligent application of floor wax or polish, the mere

fact that a smooth floor may be shiny or slippery does not support a cause of action to recover

damages for negligence, nor does it give rise to an inference of negligence.”); Linden v. Target

Corp., No. 20-CV-4975 (NGG) (SIL), 2023 WL 422797, at *3 (E.D.N.Y. Jan. 26, 2023) (same);

Murphy v. Conner, 646 N.E.2d 796, 798 (N.Y. 1994) (affirming grant of summary judgment where

plaintiff offered no evidence of the reason for her fall other than the tiles being smooth, such as

the tiles being wet, covered with debris, or recently polished or waxed).

9 Here, Plaintiff’s decision to withdraw Fein’s report is relevant to the Court’s finding that

Plaintiff could not prove at trial the existence of a dangerous condition. Furthermore, even if

Plaintiff had decided to introduce Fein’s report, as discussed supra, it would be insufficient to

show a dangerous condition and, even worse for Plaintiff’s case, it would tend to show that the

alleged accident occurred outside Target.

CV-10881 (NRB), 2023 WL 144439, at *6 (S.D.N.Y. Jan. 10, 2023) (granting summary judgment

because plaintiff failed to establish a dangerous or defective condition, where “plaintiff offer[ed]

no expert affidavit, city building code, or other method of proof suggesting that the worn portion

of [a step’s] caution stripe ma[de] a step dangerous, defective, or unlawful”); Vasquez v. United

States, No. 14-CV-1510 (DF), 2016 WL 315879, at *5–6 (S.D.N.Y. Jan. 15, 2016) (granting

summary judgment where plaintiff’s only evidence of a dangerous condition was her own

deposition testimony, given that the “mere fact” that she tripped when her shoe got stuck on a door

saddle “does not establish the existence of a dangerous condition or defect”).10

CONCLUSION

For all the foregoing reasons, Defendant’s motion for summary judgment is granted. The

Clerk of Court is respectfully directed to enter judgment and close this case.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: March 15, 2024

Brooklyn, New York

10 Because Plaintiff does not establish that a dangerous condition existed, the Court does

not reach Defendant’s argument that Plaintiff fails to show that Defendant was on actual or

constructive notice of a dangerous condition. (Def.’s Mem. 15–18.) However, the Court notes

that there is no evidence in the record of Defendant’s creation of any dangerous condition or being

on actual or constructive notice of such a condition.