1

14

- 1504

- c v

Nussbaum v. Metro

-

North

1

UNITED STATES COURT OF APPEALS 2

FOR THE SECOND CIRCUIT 3

4



## SUMMARY ORDER 5

6

Rulings by summary order do not have precedential effect. Citation to a summary order filed 7

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 8

32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this 9

Court, a party must cite either the Federal App endix or an electronic database (with the notation 10

“summary order”). A party citing a summary order must serve a copy of it on any party not 11

represented by counsel. 12

13

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 14

Thurgood Marshall United States Courthouse, 40 Foley Square , in the City of New York , on the 2 nd 15

day of March , two thousand fifteen

. 16

17

PRESENT: A MALYA L. K EARSE

, 18

D EBRA A NN L IVINGSTON

, 19

S USAN L. C ARNEY

, 20

Circuit Judges

. 21

22

23

E LIZABETH N USSBAUM

, 24

25

Plaintiff

- Appellant

, 26

27

v. No. 14

- 1504

- cv 28

29

M ETRO

- N ORTH C OMMUTER R AILROAD

, 30

31

Defendant

- Appellee

. * 32

33

34

FOR ELIZABETH NUSSBAUM : I RA M. M AURER

, The Maurer Law Firm, 35

PLLC

, Fishkill , NY

. 36

37

FOR METRO

- NORTH COMMUTER A NDREW P. K EAVENEY

, Landman Corsi 38

RAILROAD: Ballaine & Ford P.C.

, New York

, NY

. 39

40

Appeal from a judgment of the United States District Court for the Southern District of 41

New York (

Nelson S. Román

, Judge

). 42

* The Clerk of the Court is respectfully directed to amend the caption as set forth above.2

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 1

ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED

. 2

Plaintiff

- Appellant Elizabeth Nussbaum appeals from the District Court’s January 2 3 , 2014 3

judgment granting Defendant

- Appellee Metro

- North’s motion for summary judgment in 4

Nussbaum’s slip

- and

- fall negligence suit, and from the District Court’s May 8, 2014 order denying 5

Nussbaum’s motion for reconsideration. We assume the parties’ familiarity with the underlying facts, 6

the procedural hi story of the case, and the issues on appeal. 1 7

We review orders granting summary judgment de novo , resolving all factual ambiguities and 8

drawing all reasonable factual inferences in favor of the non

- moving party. Miller v. Wolpoff & 9

Abramson, L

. L

. P

. , 321 F. 3d 292, 300 (2d Cir. 2003). Summary judgment is appropriate only if the 10

moving party can show that there are no genuine issues of material fact and that the moving party is 11

entitled to judgment as a matter of law. Id. “To establish a prima facie case on a slip and fall” under 12

New York law, a plaintiff “must show that the defendant[] either created a dangerous condition or 13

had actual or constructive knowledge of the condition.” Lemonda v. Sutton , 268 A.D.2d 383, 384 14

(N.Y. App. Div. 2000) (citations omitted)

. 15

When a plaintiff seeks to establish a defendant’s slip

- and

- fall liability by showing that the 16

defendant created a dangerous condition, “the application of wax, polish, or paint to a floor in a 17

nonnegligent manner will not, standing alone, support a negli gence cause of action for making the 18

floor slippery.” Walsh v. Super Value, Inc. , 76 A.D.3d 371, 374 (N.Y. App. Div. 2010). Because liability 19

attaches only to fault, “a defendant may not be held liable for creating a dangerous or defective 20

condition upon p roperty unless the defendant had actual, constructive

, or imputed knowledge of the 21

danger created.” Id. at 37 2 . Put another way, a plaintiff who alleges that a defendant created a 22

dangerous condition must prove , not only that the defendant knew or had reas on to know of the 23

condition , but that the defendant knew or had reason to know of the danger

, i

. e ., that the condition it 24

created was dangerous. Id. at 376. 25

In this case, Nussbaum has failed to create a genuine issue of material fact as to Metro

26

North’s kn owledge that the detergent would create a dangerously slippery condition in the train car. 27

Metro

- North did not follow the manufacturer’s recommendation that FO 227 6 be diluted by ten to 28

twenty parts water to one part detergent, but there is nothing in the record to suggest that the 29

dilution recommendation had anything to do with slipperiness, or that Metro

- North had any reason 30

to believe that it did. In addition, Nussbaum did not offer any evidence to suggest that the detergent 31

had caused any previous accid ents. While Metro

- North’s database of passenger injuries indicated 32

1 At oral argument, we questioned whether subject matter jurisdiction was present in this case, as Nussbaum’s complaint

alleged that she was a resident of Massachusetts, but did not allege that she was domiciled in Massachusetts at the time of

filing . We invited Nussbaum to submit an affidavit regarding her domicile ; having reviewed her affidavit, we are satisfied

that Nussbaum was domiciled in Massachusetts when her complaint was filed , and therefore that the parties to the case

were diverse, making jurisdiction proper under 28 U.S.C. § 1332(a)(1)

.3

that previous slip

- and

- fall incidents were attributable to wet floors, there were no recorded incidents 1

referring to detergent or residue. Metro

- North certainly cleaned its train floors wit h FO 2276 , and 2

so, to the extent that the detergent was dangerous, created a dangerous condition. But Metro

- North 3

cannot be found liable under New York law on that theory unless it knew (or had reason to know) 4

that the detergent would make the floor danger ously slippery, and Nussbaum has failed to produce 5

the slightest evidence that this was so. 6

Even if a defendant did not create a dangerous condition, the defendant can still be found 7

liable if it had actual or constructive notice of the condition and faile d to correct it. See Lemonda , 268 8

A.D.2d at 384. Actual notice requires that a defendant receive complaints or similarly be alerted to 9

the existence of the dangerous condition. See Matcovsky v. Days Hotel , 10 A.D.3d 557, 558 (N.Y. App. 10

Div. 2004). There is no evidence to suggest that Metro

- North received any complaints about 11

detergent residue on the floor of the train cars, or that any previous accidents were attributable to 12

the detergent, such that Metro

- North would be put on actual notice of the existence of the residue

. 13

To prove liability based on constructive notice, the danger must have been “visible and apparent and 14

it must exist for a sufficient length of time prior to the accident to permit [the defendant] to discover 15

and remedy it.” Lemonda , 268 A.D.2d at 384 (internal quotation marks omitted)

. In this case, there 16

was no “visible and apparent” detergent residue on the floor of the train car where Nussbaum 17

slipped. Nussbaum testified that she saw only water on the floor, and , although the train con ductor 18

testified that it was not unusual for him to see a white residue on the floor, he did not testify that he 19

saw such a residue on the day when Nussbaum fell. He responded negatively when asked whether 20

he observed any “tripping hazards.” Since there wa s no genuine issue of material fact regarding 21

Metro

- North’s creation of the alleged dangerous condition or Metro

- North’s actual or constructive 22

notice of same, the district court properly granted Metro

- North’s motion for summary judgment. 23

We review a dist rict court’s denial of a motion for reconsideration for abuse of discretion. 24

Simon v. City of New York , 727 F.3d 167 , 171 (2d Cir. 2013)

, cert. denied , 134 S. Ct. 1934 (2014) . “In 25

challenging the denial of [her] motion for reconsideration, [Nussbaum] fails to point to any case law 26

or other relevant information that the district court overlooked. . . . [Nussbaum]’s arguments to the 27

contrary amount to a disagreement with the district court’s conclusions with respect to the case law 28

that was already before it, and accordingly, the district court did not abuse its discretion in denying 29

reconsideration.” Cyrus v. City of New York , 450 F. App’x 24, 26 (2d Cir. 2011). 30

CONCLUSION 31

For the reasons stated above, we AFFIRM the District Court’s judgment. 32

FOR THE COURT: 33

Catherine O’Hagan Wolfe, Clerk 34

35