11-1259-cv
Feis v. United States

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12th day of June, two thousand twelve.
PRESENT:
            RALPH K. WINTER,
            DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                      Circuit Judges.

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LOUIS FEIS,
          Plaintiff-Appellant,

                  -v.-                                11-1259-cv

UNITED STATES OF AMERICA,
          Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:            Susan R. Nudelman, Dix Hills, New
                                    York.

FOR DEFENDANT-APPELLEE:             Varuni Nelson, Diane C. Leonardo
                                    Beckmann, Assistant United States
                                    Attorneys, for Loretta E. Lynch,
                                    United States Attorney for the
                                    Eastern District of New York,
                                    Central Islip, New York.

            Appeal from a judgment of the United States District

Court for the Eastern District of New York (Seybert, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Louis Feis appeals from the

district court's February 14, 2011 judgment, granting summary

judgment in favor of defendant-appellee United States of America.

The district court entered judgment pursuant to its memorandum
and order dated February 9, 2011.

          We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal.

          Feis filed this action under the Federal Tort Claims

Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, in July 2007.     He

alleged that he slipped and fell on a wet floor at the Veterans

Affairs ("VA") Hospital in Northport, New York on May 12, 2005

and, as a result, sustained permanent injuries.   Feis claimed

that the wet floor was attributable to the VA Hospital's

negligence.   Feis testified at his deposition that an

unidentified individual, whom he had previously seen cleaning the
floors on prior visits to the hospital, approached him in the

emergency room after his fall and said, "I'm sorry I left water

on the floor.   The squeegee didn't pick it all up."     (Ex. A to

Def.'s 56.1 Statement at 42-44 ("Feis Dep.")).

          On September 10, 2009, the district court granted the

government's motion for summary judgment, concluding that Feis

had not shown that the VA Hospital created the slippery condition

or that it had requisite notice of the condition.   It deemed


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Feis's account of the individual's statement in the emergency

room inadmissible, finding that there was insufficient

circumstantial evidence to establish that the individual was a VA

employee for the purpose of admitting the statement under Federal

Rule of Evidence 801(d)(2)(D) ("A statement . . . is not hearsay

. . . [if it] is offered against an opposing party and . . . was

made by the party's agent or employee on a matter within the

scope of that relationship and while it existed . . . .").

          On October 1, 2010, we vacated the district court's

judgment on the basis that it failed to consider the individual's

statement itself in determining whether an adequate foundation

under Rule 801(d)(2)(D) had been established.   See Feis v. United

States, 394 F. App'x 797 (2d Cir. 2010) (summary order).    On

remand, the district court found that the statement, coupled with

Feis's inability to recall other identifying information about

the individual and the lack of any other evidence as to the

individual's identity or alleged employment, failed to establish

that the individual was an employee of the VA Hospital.    It

therefore concluded again that Feis had not laid the proper

foundation on which to admit the statement under Rule

801(d)(2)(D) and granted summary judgment in favor of the

government.

              Our review of a grant of summary judgment presenting

evidentiary issues involves two levels of inquiry.   LaSalle Bank
Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 211 (2d

Cir. 2005) (citing Raskin v. Wyatt Co., 125 F.3d 55, 67 (2d Cir.


                                 -3-
1997)).     First, we review the district court's evidentiary

rulings for abuse of discretion and reverse only for "manifest

error."   Id. at 205-06, 211; see also Sage Realty Corp. v. Ins.

Co. of N. Am., 34 F.3d 124, 128 (2d Cir. 1994).     Second, with the

evidentiary record defined, we review the district court's grant

of summary judgment de novo.    LaSalle Bank, 424 F.3d at 211

(citing Raskin, 125 F.3d at 67).     For summary judgment to be

granted, there must be "'no genuine issue as to any material

fact'" and the movant must be "'entitled to judgment as a matter

of law.'"    Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010) (quoting Fed. R. Civ. P. 56(a)).    In deciding a motion for

summary judgment, the court must resolve ambiguities and draw

reasonable inferences against the movant and review factual

determinations "in the light most favorable to the non-moving

party."   Id.

             We have conducted an independent review of the record

in light of these principles and conclude that the district court

did not abuse its discretion in excluding the statement and that

the district court properly granted summary judgment in favor of

the government.

             Recognizing the "wide latitude" we give district courts

in determining the admissibility of evidence, see Meloff v. N.Y.
Life Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001) (citation and

internal quotation marks omitted), we cannot conclude that the

district court's evidentiary ruling here was outside the "range

of permissible decisions," see United States v. Miller, 626 F.3d


                                  -4-
682, 690 (2d Cir. 2010) (citation and internal quotation marks

omitted), or that it was "manifest error," see LaSalle Bank, 424

F.3d at 205-06.   Indeed, we have previously affirmed the

exclusion of testimony offered under Rule 801(d)(2)(D) where, as

here, there was little evidence to establish that the declarant

was an agent or employee of the opposing party.   See, e.g.,

Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 128-29 (2d Cir.

2005).   See also Fed. R. Evid. 801(d)(2) ("The statement . . .

does not by itself establish . . . the existence or scope of the

[agent or employee] relationship under (D) . . . .").

           Without the excluded statement of the unidentified

individual, Feis presented insufficient evidence to raise a

genuine issue of fact as to whether the VA Hospital created the

slippery condition or had actual or constructive notice of the

slippery condition.   See Bykofsky v. Waldbaum's Supermarkets,
Inc., 619 N.Y.S.2d 760, 761 (2d Dep't 1994) ("[F]or a plaintiff

in a 'slip and fall' case to establish a prima facie case of

negligence, the plaintiff must demonstrate that the defendant

created the condition which caused the accident, or that the

defendant had actual or constructive notice of the condition.").

Feis's only other assertion -- mainly, that he had previously

seen streaks of water on the floor after the squeegee machine had

been used and that he had previously complained about water on

the floor -- is not enough to support the inference that the wet

floor on the day of his fall was caused by the VA Hospital or

that the VA Hospital was, or should have been, aware of it.     See


                                -5-
id. ("To constitute constructive notice, 'a defect must be

visible and apparent and it must exist for a sufficient length of

time prior to the accident to permit defendant's employees to

discover and remedy it.'" (quoting Gordon v. Am. Museum of

Natural History, 67 N.Y.2d 836, 837 (1986)); Lewis v. Metro.

Transp. Auth., 472 N.Y.S.2d 368, 372 (1st Dep't 1984) (presence

of slippery condition alone not enough to establish cause of

action).

           We have considered Feis's remaining arguments on appeal

and find them to be without merit.    Accordingly, the judgment of

the district court is hereby AFFIRMED.



                          FOR THE COURT:
                          CATHERINE O'HAGAN WOLFE, CLERK




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