     14-1504-cv
     Nussbaum v. Metro-North
 1
 2                                      UNITED STATES COURT OF APPEALS
 3                                         FOR THE SECOND CIRCUIT
 4
 5                                               SUMMARY ORDER
 6
 7           Rulings by summary order do not have precedential effect. Citation to a summary order filed
 8   on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
 9   32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
10   Court, a party must cite either the Federal Appendix or an electronic database (with the notation
11   “summary order”). A party citing a summary order must serve a copy of it on any party not
12   represented by counsel.
13
14          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
15   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd
16   day of March, two thousand fifteen.
17
18   PRESENT:             AMALYA L. KEARSE,
19                        DEBRA ANN LIVINGSTON,
20                        SUSAN L. CARNEY,
21                                     Circuit Judges.
22
23
24   ELIZABETH NUSSBAUM,
25
26                        Plaintiff-Appellant,
27
28                                 v.                                                       No. 14-1504-cv
29
30   METRO-NORTH COMMUTER RAILROAD,
31
32                        Defendant-Appellee.*
33
34
35   FOR ELIZABETH NUSSBAUM:                                             IRA M. MAURER, The Maurer Law Firm,
36                                                                       PLLC, Fishkill, NY.
37
38   FOR METRO-NORTH COMMUTER                                            ANDREW P. KEAVENEY, Landman Corsi
39   RAILROAD:                                                           Ballaine & Ford P.C., New York, NY.
40
41        Appeal from a judgment of the United States District Court for the Southern District of
42   New York (Nelson S. Román, Judge).


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

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 1        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 2   ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

 3          Plaintiff-Appellant Elizabeth Nussbaum appeals from the District Court’s January 23, 2014
 4   judgment granting Defendant-Appellee Metro-North’s motion for summary judgment in
 5   Nussbaum’s slip-and-fall negligence suit, and from the District Court’s May 8, 2014 order denying
 6   Nussbaum’s motion for reconsideration. We assume the parties’ familiarity with the underlying facts,
 7   the procedural history of the case, and the issues on appeal.1

 8           We review orders granting summary judgment de novo, resolving all factual ambiguities and
 9   drawing all reasonable factual inferences in favor of the non-moving party. Miller v. Wolpoff &
10   Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is appropriate only if the
11   moving party can show that there are no genuine issues of material fact and that the moving party is
12   entitled to judgment as a matter of law. Id. “To establish a prima facie case on a slip and fall” under
13   New York law, a plaintiff “must show that the defendant[] either created a dangerous condition or
14   had actual or constructive knowledge of the condition.” Lemonda v. Sutton, 268 A.D.2d 383, 384
15   (N.Y. App. Div. 2000) (citations omitted).

16            When a plaintiff seeks to establish a defendant’s slip-and-fall liability by showing that the
17   defendant created a dangerous condition, “the application of wax, polish, or paint to a floor in a
18   nonnegligent manner will not, standing alone, support a negligence cause of action for making the
19   floor slippery.” Walsh v. Super Value, Inc., 76 A.D.3d 371, 374 (N.Y. App. Div. 2010). Because liability
20   attaches only to fault, “a defendant may not be held liable for creating a dangerous or defective
21   condition upon property unless the defendant had actual, constructive, or imputed knowledge of the
22   danger created.” Id. at 372. Put another way, a plaintiff who alleges that a defendant created a
23   dangerous condition must prove, not only that the defendant knew or had reason to know of the
24   condition, but that the defendant knew or had reason to know of the danger, i.e., that the condition it
25   created was dangerous. Id. at 376.

26           In this case, Nussbaum has failed to create a genuine issue of material fact as to Metro-
27   North’s knowledge that the detergent would create a dangerously slippery condition in the train car.
28   Metro-North did not follow the manufacturer’s recommendation that FO 2276 be diluted by ten to
29   twenty parts water to one part detergent, but there is nothing in the record to suggest that the
30   dilution recommendation had anything to do with slipperiness, or that Metro-North had any reason
31   to believe that it did. In addition, Nussbaum did not offer any evidence to suggest that the detergent
32   had caused any previous accidents. While Metro-North’s database of passenger injuries indicated


     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).

                                                                 2
 1   that previous slip-and-fall incidents were attributable to wet floors, there were no recorded incidents
 2   referring to detergent or residue. Metro-North certainly cleaned its train floors with FO 2276, and
 3   so, to the extent that the detergent was dangerous, created a dangerous condition. But Metro-North
 4   cannot be found liable under New York law on that theory unless it knew (or had reason to know)
 5   that the detergent would make the floor dangerously slippery, and Nussbaum has failed to produce
 6   the slightest evidence that this was so.

 7             Even if a defendant did not create a dangerous condition, the defendant can still be found
 8   liable if it had actual or constructive notice of the condition and failed to correct it. See Lemonda, 268
 9   A.D.2d at 384. Actual notice requires that a defendant receive complaints or similarly be alerted to
10   the existence of the dangerous condition. See Matcovsky v. Days Hotel, 10 A.D.3d 557, 558 (N.Y. App.
11   Div. 2004). There is no evidence to suggest that Metro-North received any complaints about
12   detergent residue on the floor of the train cars, or that any previous accidents were attributable to
13   the detergent, such that Metro-North would be put on actual notice of the existence of the residue.
14   To prove liability based on constructive notice, the danger must have been “visible and apparent and
15   it must exist for a sufficient length of time prior to the accident to permit [the defendant] to discover
16   and remedy it.” Lemonda, 268 A.D.2d at 384 (internal quotation marks omitted). In this case, there
17   was no “visible and apparent” detergent residue on the floor of the train car where Nussbaum
18   slipped. Nussbaum testified that she saw only water on the floor, and, although the train conductor
19   testified that it was not unusual for him to see a white residue on the floor, he did not testify that he
20   saw such a residue on the day when Nussbaum fell. He responded negatively when asked whether
21   he observed any “tripping hazards.” Since there was no genuine issue of material fact regarding
22   Metro-North’s creation of the alleged dangerous condition or Metro-North’s actual or constructive
23   notice of same, the district court properly granted Metro-North’s motion for summary judgment.

24           We review a district court’s denial of a motion for reconsideration for abuse of discretion.
25   Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013), cert. denied, 134 S. Ct. 1934 (2014). “In
26   challenging the denial of [her] motion for reconsideration, [Nussbaum] fails to point to any case law
27   or other relevant information that the district court overlooked. . . . [Nussbaum]’s arguments to the
28   contrary amount to a disagreement with the district court’s conclusions with respect to the case law
29   that was already before it, and accordingly, the district court did not abuse its discretion in denying
30   reconsideration.” Cyrus v. City of New York, 450 F. App’x 24, 26 (2d Cir. 2011).

31                                              CONCLUSION

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

33                                                            FOR THE COURT:
34                                                            Catherine O’Hagan Wolfe, Clerk
35



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