fact as to whether or not the condition on the store's floor was visible and apparent and by visible and apparent the courts have interpret that to mean capable of being seen whether it's hardly noticeable was difficult to see really is beside the point the evidence that was in the record below was that mystery of some other condition forty five minutes before the accident and that although she didn't see it immediately prior to the accident she sort after the accident her son who was with her was sort on the floor after the accident and the store's team leader and the targets employee saw it following the accident  doesn't approve depend upon the being there as well forty minutes before forty five minutes before yes church because forty five minutes before challenge that would have had time to clean up the failed to do exactly judge and the district discredit the first statement because she didn't see it later found a conflict in the testimony in her testimony and she didn't see it the second time but she did see it the first time and and and and made some kind of  a second time that's that's in the record right issue and also as far as the corroboration is concerned did she is new testimony both from her son and from her that even though the son didn't see it the first before isn't in all circumstances and after reason material issue in fact involved a puddle of water in the middle of an eight hundred square foot dance floor crowded with people there was an obstruction for the employees to see and so there was an issue even though someone had seen the particular puddle on the dance floor prior to the excellent twenty minutes whatever was there was an issue that the stores or the club's employees were able to see because it was obstructed by the crow decision as you know that but we're reading it to say well the employer's employees couldn't have seen the spill because it was a crowded dance floor and there's no testimony by any else saw it so the fact that this one person said when i was dancing right over it i saw it not enough to create a material issue they couldn't have seen it in taking care of it here you have a clear liquid that after the fact at least as is is said to be a small amount of liquid and it's on a whitish floor there's video of people walking by that aisle and they don't try to avoid anything that's visible if you and all the facts together are is it like canteloupe i guess that's what i mean asking i don't believe so judge and the difference that the fact that the water may have been difficult to see is not alone doesn't take the issue doesn't eliminate the issue of fact from the case and that was by the fourth the poem in cases that came to that to that conclusion plus to defend the claim that there was an inscription or did that the plaintiff testify as to how much water she first saw compared to what the so called half a cup or whatever was right judge she never was able to look right i mean according to the way according to the decision from the dischord he did not see the liquid himself i think what he said was he didn't look to see what she was talking about but he heard her mention it and that they were walk words in that case there was liquid on the floor it was some time before the accident occurred but the decision was made that you know under those circumstances that wasn't sufficient time for the court for the  operator to clean it up so there isn't a similar light it's almost as if someone is saying well she says was there but it really wasn't visible enough insufficiently in advance of the incident to give rise to construct notice it's different for the following reason sure number one because it might have been difficult to see does not mean that it wasn't capable of being seen as she said i think right and also they saw the water following it and then on the dance what maybe that wasn't capable of being seen because of the obstructing crowd so i think that's why there it's different also in both the rivera and the king case the court specifically said in response to the defendant's testimony that it was hard to see it was hardly noticeable it was difficult to say in each of those cases the court said no there's an issue of fact that has to be resolved by the trier of the facts because the water was observed immediately following the accident by the store's employee and in those cases are very long they're not very analytical but based upon the totality of the facts here the fact that you sort forty five minutes before the fact that inspection was done by the target employee fifteen minutes before but it was done negligently because the the fact that back immediately following the accident both the plaintiff the son and the store employees saw the water and are the fact that the plaintiff did not see it immediately prior to the exit and doesn't belong to visibility of the condition it only indicated that she trial there be lots of good cross examination that you for example might use among which would be well if you saw it forty minutes ago why did you first slip in it forty minutes later to suggest that she's making it make a draw they didn't such a liar that she's not lying but but she did say she saw water she said she said she saw it she mentioned it to her son her son said i didn't pay much attention my mom mentioned something he's not even clear as to what her saying anything about it he didn't say that under oath he did not say that but what he did say under oath was that the water was not noticeable he took after the pit at his deposition as to the second as to the incident he said that water was not noticeable is now after the accident well his thinking back to immediately before the accident it was not noticeable and i think that really strikes at the distinguishing s i'm sorry i think this means that he didn't look for water he knew he wasn't paying any much attention but his mother said there was nothing he locked and couldn't find it i don't disagree with you characterization but i would reiterate that he said i my mother mentioned something at the time i didn't pay much attention and then later he says that because there wasn't any notice wet floor or and it wasn't noticeabl page twenty two of his deposition this is the thinnest yeah i mean we you know these are different different statements obviously for i find you to sort out perhaps  best though it shows that the water was there before hand indeed that's what the district court found and granted the plaintiff that in deciding the case what the court said was that this simply was not visible in a parent and i think that decision is consistent with all of the cases the say court cases and the district court cases and indeed this court's case what she said was that there wasn't corroborating evidence that it was  or wasn't how long it was on the floor it's hundreds are only in so far as the first printing of the district court's analysis whether it was there for forty five minutes or not but not as to whether it was visible or apparent how could she see if it was invisible want to parent if she said i saw it it must have been visible right of me she may not have seen it later when she fell on it but that's neither here or there she's saying she saw it at the time we not of the time at that you know forty to forty five minutes later corroborated they were no other customers or even the son for that matter who said you know what i saw that liquid on the floor there forty minutes ago or half an hour ago twenty minutes ago no one did that that's certainly true  question is always it all seems to me like the district court was making a credibility determination might be right that the plaintiff is not a credible person but it also feels like it's a credibility determination well no one else saw it and you didn't see it when you in it so therefore you must not have seen it must not have been visible apparent forty minutes earlier when you said you saw it's kind of circular when it even if the plaintiff testimony is taken as true it does not establish that target was unreasonable or negligent and his conduct or behavior in not noticing a half a cup of water on a clear floor where it doesn't have to establish that for purposes of getting past summary judgment all she has to do is create an issue of fact or warning a trial now a trial she would have to establish it to the satisfaction of a jury that's true but we're not talking about that right now right now we're only talking about whether she gets a trial but simply saying that i saw a cup of clear water a half a cup of clear water on  floor does not make it visible and apparent to under the circumstances the video that's before this court and all of the traffic that was there it simply is you know it seems i looked at the video it seems like the video is not really conclusive one where the other it's true nobody slips and it does it doesn't show it but you know if you're talking about a clear liquid on a white floor it might be difficult to see in a video taken from a distance but less difficult to see from five feet or five or half feet are we're told it was present in that context i would suggest that this case is then similar to the case of a crowded dance floor because there is such traffic and even if it was there before out all these people dancing around a dance floor obscuring something so let's say the video here showed you know a family you know mom dad and three children and a shopping cart you know in that shopping lane for forty five minutes a minute that's not what it shows but maybe if that were the case well then you'd have an obscuring situation similar to canteloupe i'm not saying you're going to fruits but the facts are quite different that's indeed i would rather focus on how this case comfortably fits within all of the other department store cases that are before this court and i think in comparison in terms of a summary judgment decision the only argument that the plaintiff has is that the pla the remark forty five minutes before hands and requires an assumption that it's the same water or it given the plaintiff at that inference to anything i mean the question is is that statement enough to get a trial we would see just not  would suggest that there should be some other evidence besides a plain of simple statement offered the position that seems to me to be the issue about the what do you do with the statement by the district court saying that  the observation of the water after the accident or the court construes the facts to plan his favor other evidence in the record including plaintiff's own testimony that she did not see the liquid immediately before she slipped it belies the visibility so that the judge used the fact that she didn't see the liquid before she slept to in effect contradicts your earlier statement that she saw it and there's an explanation for why she did see before she said she wasn't looking for it wasn't working down so how how how can you justify you can can you defend what the court did under the circumstances is recorded under the circumstance fact that it was having it that it was that she saw it before that there was sufficient that the liquid was visible before and we have a country you know we have a response to that  she didn't see it the second time when she fell and we know well we have here is the slimmest of statements and i think the district court properly addressed that given the  circumstances but if your adversary characterizes new york law saying visible an appearance means capable of being see if he's right about that articulation isn't it enough that she said i saw it forty five minutes earlier white floor and their bright lights might be visible but i would not agree that it is necessarily a half a cup of that is apparent and i think that's the distinction unless there are any further questions thank you for your time i don't have much to add i just wanted to point one thing out of the alexander case which is a southern district case from two thousand and two specifically said that a reasonable inference should be drawn in favor of the non moving party that the same