Christian v. United States

• Decision Date: 09 May 2012
• Docket Number: No. 10–CV–3006.,10–CV–3006.
• Citation: 859 F.Supp.2d 468
• Parties: Mary CHRISTIAN and Thomas Christian, Plaintiffs, v. UNITED STATES of America and United States Postal Service, Defendants.
• Court: U.S. District Court — Eastern District of New York

859 F.Supp.2d 468

Mary CHRISTIAN and Thomas Christian, Plaintiffs,

v.UNITED STATES of America and United States Postal Service, Defendants.

No. 10–CV–3006.

United States District Court, E.D. New York.

May 9, 2012.

Michael Aronow, Sands Point, NY, for Plaintiffs.

Diane C. Leonardo–Beckmann, United States Attorneys Office, Central Islip, NY, for Defendants.

MEMORANDUM AND ORDER

KUNTZ, District Judge.

Plaintiffs Mary Christian (“Mrs. Christian” or “Plaintiff”) and Thomas Christian (“Mr. Christian” or “Plaintiff's husband”) commenced this action on June 30, 2010 against Defendants United States of America and United States Postal Service (collectively “Defendants”) pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. Plaintiffs seek to recover monetary damages for personal injuries Plaintiff sustained as a result of a trip and fall due to a purported defect on a sidewalk adjacent to the West Hempstead Post Office building located at 245 Hempstead Avenue, West Hempstead, New York (“Post Office”). Plaintiff's husband seeks to recover damages for loss of services, society, and consortium of his spouse. Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, Defendants' motion is granted.

I. Factual Background

Defendants own the Post Office and its underlying property located at 245 Hempstead Avenue, West Hempstead, New York. Decl. of Diane Beckman, Feb. 10, 2012 (“Beckman Decl.”), Ex. E (Decl. of Egidio A. Giacoia, Feb. 9, 2012), at ¶ 2. A straight, public sidewalk runs in front of the Post Office on Hempstead Avenue and on the west side of the Post Office on Maplewood Avenue. Id. at ¶ 3. On August 15, 2008, at approximately 10:30 a.m., Plaintiff exited the Post Office and walked west in the direction of Maplewood Avenue. Beckman Decl., Ex. A (Dep. of Mary Christian, Aug. 11, 2011), Tr. 25:3–24. Plaintiff alleges she tripped and fell on a sidewalk adjacent to the Post Office, causing her to sustain physical injuries. Compl., at ¶ 33. Plaintiff was familiar with the area surrounding the Post Office and walked in the area of Maplewood Avenue and Hempstead Avenue in West Hempstead several times per week. Defs.' 56.1, at ¶ 2. Prior to August 15, 2008, Plaintiff did not make any complaints about the condition of the subject sidewalk to the Post Office, the Town of Hempstead, or any other businesses in the area. Defs.' 56.1, at ¶ 3. Plaintiff alleges the cause of her fall was a “raised sidewalk flag,” otherwise referred to as a height differential on the sidewalk. Pls.' Mem. of Law in Opp'n to Pls.' [sic] Mot. for Summ. J., Feb. 23, 2012 (“Pls.' Opp'n”), at 2.

Following the incident, Plaintiff retained Nicholas Stolfa Investigations. An investigator/photographer of Nicholas Stolfa Investigations took photographs of the area around the Post Office, including Maplewood Avenue and Hempstead Avenue on August 19, 2008—four days after the incident. Decl. of Michael Aranow, Feb. 23, 2012 (“Aranow Decl.”), at ¶ 2. Plaintiff was not present when these photographs were taken. Defs.' 56.1, at ¶ 4. Plaintiff did not show the investigator where she allegedly fell. Id. at ¶ 5.

On October 3, 2008, Plaintiffs served the Town of Hempstead with a notice of claim seeking payment for the injuries sustained by Plaintiff as a result of the August 15, 2008 incident. Second Decl. of Diane Beckman, Mar. 5, 2012 (“Beckman Second Decl.”), Ex. I (Notice of Claim, Oct. 3, 2008). On December 23, 2008, an attorney for the Town of Hempstead deposed Plaintiff pursuant to General Municipal Law, § 50–h of the New York Code (the “50–h hearing”). Aranow Decl., Ex. D (Tr. of Town of Hempstead 50–h hearing and attached photographs). During the 50–h hearing, Plaintiff was asked by her attorney to indicate on a photograph the location of her fall. Plaintiff marked the photograph with an “X” to denote the location of her fall. Plaintiff and her attorney established the “X” was only an approximation, and Plaintiff could have fallen “a foot or two down towards Hempstead Avenue.” Aranow Decl., Ex. D, Tr. 7:22–9:7. During her August 11, 2011 deposition, Plaintiff identified numerous different photographs, taken by Nicholas Stolfa Investigations in August 2008, as depicting the area in which she believed she fell. Beckman Decl., Ex. A, Tr. 44:2–55:24. Plaintiff was unable to identify the exact location of her trip and fall. Id.

On the same day of the alleged incident, Plaintiff's husband took photographs of the area where he thought his wife “possibly took flight.” Beckman Decl., Ex. B (Dep. of Thomas Christian, Aug. 11, 2011), Tr. 12:16–13:12. Plaintiff did not show her husband where she fell, nor was she present when he took the photographs. Defs.' 56.1, at ¶ 9. Plaintiff's husband testified he was not certain in which area Plaintiff fell. Defs.' 56.1, at ¶ 10. Plaintiff's husband testified the height differential appeared to be between one-half inch and one-and-one-quarter inches. Beckman Decl., Ex. B, Tr. 14:12–17:23. During her deposition, Plaintiff identified a photograph taken by her husband as the area where she fell. Defs.' 56.1, at ¶ 7.

Plaintiff's expert offered an opinion as to the location where Plaintiff fell and described the height differential as “approximately one inch higher at the area than the lower section of the sidewalk where she tripped.” Aranow Decl., Ex. B (Expert Report of Mr. Alvin Ubell, Sept. 22, 2011), at 5. In their motion papers, Plaintiffs allege the height differential at the location Plaintiff tripped was between one inch and one-and-one-quarter inches. Pls.' Opp'n, at 5.

On or about October 21, 2008, the Town of Hempstead issued a notice to the Post Office to repair the public sidewalk on Maplewood Avenue before December 20, 2008. Beckman Decl., Ex. G (Town of Hempstead Notice, Oct. 21, 2008). The repair was completed by a contractor on or about November 22, 2008. Aranow Decl., Ex. G (contractor invoice, Dec. 10, 2008).

II. Standard Of Law

A. Summary Judgment

A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried. In determining whether summary judgment is appropriate, this Court will construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal citations and quotations omitted). No genuine issue of material fact exists “where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir.2001) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

If the moving party satisfies this burden, the non-moving party must “make a showing sufficient to establish the existence of [each] element to that party's case ... since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Importantly, if the evidence produced by the non-moving party “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal citations omitted).

III. Federal Tort Claims Act

The FTCA removes the sovereign immunity of the United States from suits in tort, and, with certain exceptions, renders the Government liable in tort as a private individual would be under like circumstances. Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Under the FTCA, actions brought against the United States “for money damages ... for personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government ... [shall be determined] in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Accordingly, a “federal court presiding over a FTCA claim must apply ‘the whole law of the State where the act or omission occurred.’ ” Testaverde v. United States, No. 05–CV–2642, 2009 WL 1456533, at *6 (Ross, J.) (E.D.N.Y. May 26, 2009) (quoting Richards, 369 U.S. at 11, 82 S.Ct. 585). Here, because the alleged negligent acts of the Government occurred in New York, this Court must apply the law of the State of New York.

IV. Negligence Claim

To establish a prima facie claim of negligence under New York law, a plaintiff must show (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty, and (3) the plaintiff suffered damage as a proximate result of that breach. Lombard v. Booz–Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir.2002); Ingrassia v. Lividikos, 54 A.D.3d 721, 864 N.Y.S.2d 449, 452 (2d Dep't 2008). Under New York law, liabilityfor injuries sustained as a result of a dangerous or defective condition on a public sidewalk generally will be imposed upon an owner of real property abutting the sidewalk only when (1) a statute or ordinance placing the obligation to maintain the sidewalk on the landowner expressly makes the landowner liable for injuries caused by failure to perform that duty, (2) the landowner created the defective condition, or (3) the landowner caused the defect to occur because of some special use of the sidewalk. Hausser v. Giunta, 88 N.Y.2d 449, 453, 646 N.Y.S.2d 490, 669 N.E.2d 470 (1996); Petrillo v. Town of Hempstead, 85 A.D.3d 996, 997, 925 N.Y.S.2d 660 (2d Dep't 2011); Romano v. Leger, 72 A.D.3d 1059, 900 N.Y.S.2d 346 (2d Dep't 2010). “[L]iability...