     12-4996
     Singh v. Home Depot U.S.A., Inc.



                            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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
     York, on the 8th day of October, two thousand fourteen.

     PRESENT:
                 BARRINGTON D. PARKER,
                 GERARD E. LYNCH,
                 SUSAN L. CARNEY,
                       Circuit Judges.
     _________________________________________

     BALWAN SINGH,

                       Plaintiff-Appellant,

                       v.                                                  12-4996

     HOME DEPOT U.S.A., Inc.,

                 Defendant-Appellee.
     _________________________________________

     FOR APPELLANT:                     Balwan Singh, pro se, Bellerose, New York.

     FOR APPELLEES:                     Stephen F. Willig, D’Amato & Lynch, LLP, New York, New
                                        York.
       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Sandra J. Feuerstein, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

       Appellant Balwan Singh, proceeding pro se, appeals from a judgment of the district

court dismissing his diversity negligence claim following a bench trial. Singh’s briefs

challenge the scheduling of the bench trial and the district court’s ruling that he failed to

establish a prima facie case of negligence. We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

I.     Trial Scheduling

       We review a district judge’s decision to deny a continuance “only for abuse of

discretion.” Farias v. Instructional Sys., Inc., 259 F.3d 91, 100 (2d Cir. 2001). A

defendant seeking a reversal must demonstrate that the court’s decision was both arbitrary

and prejudicial. United States v. Miller, 626 F.3d 682, 690 (2d Cir. 2010).

       Singh gives us no reason to believe that his inability to attend the trial prejudiced

his case. In light of Singh’s absence, his attorney presented Singh’s testimony via his

deposition transcript, which thoroughly covered all the subjects on which Singh had

offered to testify at trial. Singh identifies no additional testimony that he could have

provided, much less shows how that testimony may have changed the verdict. See Payne

v. Jones, 711 F.3d 85, 91 (2d Cir. 2013) (finding no prejudice where “the defendant failed

to identify anything he would have testified to that was not included in the deposition

testimony that was read to the jury”).



                                               2
       Singh appears to suggest that he received ineffective assistance of counsel because

his counsel “misled” him about the date of the trial. But a lawyer’s purported

shortcomings present no cognizable ground for relief in a civil matter, where the Sixth

Amendment right to counsel does not apply. United States v. Coven, 662 F.2d 162, 176

(2d Cir. 1981). Any alleged misunderstanding between Singh and his attorney regarding

the trial date provides no basis to disturb the judgment.

II.    Evidence at Trial

       Following a bench trial, we review the district court’s legal conclusions de novo

and its findings of fact for clear error. See L.I. Head Start Child Dev. Servs., Inc. v. Econ.

Opportunity Comm’n of Nassau County, 710 F.3d 57, 65 (2d Cir. 2013). We “give

deference to all credibility determinations and reasonable inferences of the [fact finder],

and may not weigh the credibility of witnesses or otherwise consider the weight of the

evidence.” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir.

2012) (internal quotation marks omitted).

       Under New York law, a claimant seeking to establish a prima facie case of

negligence must demonstrate that “(1) the defendant owed the plaintiff a cognizable duty of

care; (2) the defendant breached that duty; and (3) the plaintiff suffered damaged as a

proximate result.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.

2006) (internal quotation marks omitted). Where a claimant is injured by a dangerous

condition on the defendant’s property and the defendant did not create the condition, the

defendant is liable only if he had actual or constructive notice of the defect. Taylor v.

United States, 121 F.3d 86, 89-90 (2d Cir. 1997). To give rise to constructive notice, the

defect “must be visible and apparent and it must exist for a sufficient length of time prior to
                                               3
the accident to permit defendant’s employees to discover and remedy it.” Id. at 90 (internal

quotation marks omitted).

       We find no error in the district court’s conclusion that Singh failed to establish a

prima facie case of negligence. The district court reasonably found that Singh did not

prove by a preponderance of the evidence that his injury was caused by a “defect” on

Home Depot's property, much less that Home Depot or its employees were or should have

been aware of that defect. Singh suggests that a broken pallet caused his fall, but the

record does not establish that the pallet was even broken, much less who broke it or

whether Home Depot’s employees should have been aware of the condition. Read

generously, Singh’s position is that the very design of Home Depot’s tile display, allowing

customers to move heavy packages unattended, was unreasonably dangerous. But the

evidence that Home Depot had used the same display – similar to others throughout its

stores – for at least a month without prior accidents or complaints supports the district

court’s finding that the design comported with standards of ordinary care.

        For the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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