Rodland v. Judlau Contracting, Inc.

• Decision Date: 06 January 2012
• Docket Number: No. 10 Civ. 5888(AJP).,10 Civ. 5888(AJP).
• Parties: Nancy RODLAND and Ole Rodland, Plaintiffs, v. JUDLAU CONTRACTING, INC., Ali Elsayed d/b/a Alexandria Tile Company, Defendants.
• Court: U.S. District Court — Southern District of New York

844 F.Supp.2d 359

Nancy RODLAND and Ole Rodland, Plaintiffs,

v.JUDLAU CONTRACTING, INC., Ali Elsayed d/b/a Alexandria Tile Company, Defendants.

No. 10 Civ. 5888(AJP).

United States District Court,

S.D. New York.

Jan. 6, 2012.

Walter Aoysius Kretz, Jr., Seiff Kretz & Abercrombie, New York, NY, for Plaintiffs.

Anthony Albert Lenza, Jr., Anabile & Erman, P.C., Staten Island, NY, for Defendants.

OPINION AND ORDER

ANDREW J. PECK, United States Magistrate Judge:

Plaintiffs Nancy and Ole Rodland bring this action alleging that Nancy Rodland was injured when defendants Judlau Contracting, Inc. and Ali Elsayed d/b/a Alexandria Tile Company (hereafter, “Alexandria”) negligently installed a temporary cement transition during renovations of a subway platform. ( See Dkt. No. 1: Compl.)

Presently before the Court are defendants' joint motion for summary judgment. (Dkt. No. 31: Defs. Notice of Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 16.)

For the reasons set forth below, defendants' joint summary judgment motion is DENIED as to Judlau but GRANTED as to Alexandria.

FACTS

In August 2007, the MTA's 59th Street Columbus Circle subway station was under renovation that included “demolition of the existing concrete subway platforms and the installation of floor tile on the platforms.” (Dkt. Nos. 34 & 39: Defs. & Pls. Rule 56.1 Stmts. ¶¶ 4, 6.) As the MTA's general contractor, Judlau demolished the existing platform flooring so that its subcontractor Alexandria could install the floor tiles. (Defs. & Pls. Rule 56.1 Stmts. ¶¶ 3, 5.) By removing the flooring, Judlau created “elevation differentials” on the platforms. (Defs. & Pls. Rule 56.1 Stmts. ¶ 6.) Judlau addressed the elevation differentials by installing temporary cement transitions “at a sloped angle.” (Defs. & Pls. Rule 56.1 Stmts. ¶¶ 1, 9–10.) Alexandria did not create the elevation differentials or install the temporary cement transitions. (Defs. & Pls. Rule 56.1 Stmts. ¶¶ 24–26, 28.)

On August 10, 2007, Virginia residents Nancy and Ole Rodland were exiting a subway car on the northbound IND train platform of the 59th Street Columbus Circle subway station when Nancy Rodland tripped and fell on the cement transition installed by Judlau. (Dkt. No. 1: Compl. ¶¶ 1, 18; Pls. Rule 56.1 Stmt. ¶ 41.) According to the Rodlands, the cement transition was 2 to 3 inches high with a hypotenuse of 6 to 8 inches. (Ex. 18: N. Rodland Dep. at 53–54; Ex. 19: O. Rodland Dep. at 9–10.) ¹ Nancy Rodland did not see any warning signs posted in the area. (Pls. Rule 56.1 Stmt. ¶¶ 42–43; N. Rodland Dep. at 54.) Additionally, no one warned Nancy Rodland that the platform was under construction, and she did not see any construction workers on the platform when she fell. (N. Rodland Dep. at 58.) As a result of her fall, Nancy Rodland fractured the fifth metatarsal on her left foot. (Ex. 13: Dr. Thomas Report at 1, 4.)

Represented by counsel, Nancy Rodland filed an August 4, 2010 complaint alleging that Judlau and Alexandria negligently caused her injuries

in that they failed to properly maintain the premises, allowed a dangerous, uneven surface to exist, failed to warn of the dangerous condition, failed to remedy the condition, failed to take the proper steps to safeguard plaintiff, failed to set up barriers and warnings, failed to make the premises safe for commuters, pedestrians, the general public and the plaintiff in particular, failed to exercise due and required care and caution in the maintenance of the premises; and otherwise failed to use reasonable care, caution and prudence.

(Compl. ¶ 20.) In addition, because of the injury to his wife, Ole Rodland sued Judlau and Alexandria for loss of her services and consortium. (Compl. ¶¶ 24–25.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that the “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); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509–10, 91 L.Ed.2d 202 (1986); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552–53.

To defeat a summary judgment motion, the non-moving party must do “more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must “cit[e] to particular parts of materials in the record” to show that “a fact ... is generally disputed.” Fed.R.Civ.P. 56(c); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356;Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, “[t]he time has come ... ‘to put up or shut up.’ ” (citations omitted)), cert. denied,540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003).

In evaluating the record to determine whether there is a genuine issue as to any material fact, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.² The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied,484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987). “If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper.” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied,480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While “disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11–12.

II. JUDLAU IS NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE DISPUTED ISSUES OF MATERIAL FACT EXIST

Judlau argues that it is “entitled to summary judgment because there are no material triable issues of fact.” (Dkt. No. 33: Defs. Br. at 1; Dkt. No. 41: Defs. Reply Br. at 1.) This Court disagrees. In her deposition, Nancy Rodland testified that she could not see the platform when she exited the subway car because the platform crowded with people. (Ex. 18: N. Rodland Dep. at 35, 40.) After exiting the subway car, Nancy Rodland took a few steps before twisting her left foot and falling to the floor. (N. Rodland Dep. at 34–41.) After falling, Nancy Rodland turned around and saw a concrete “slanted drop” in the platform that was 2 1/2 to 3 inches high with a hypotenuse of 6 to 8 inches. (N. Rodland Dep. at 48–49, 53–54.) Nancy Rodland did not see any warning signs posted in the area. ( See page 2 above.) Moreover, Nancy Rodland testified that no one warned her that the platform was under construction and she did not see any construction workers on the platform when she fell. ( See page 2 above.)

While not contesting that it created the uneven platform or that it installed the cement transition, Judlau argues that it “installed construction signs on the columns of the subway platforms stating ‘Watch Your Step’ to make pedestrians aware of the difference in elevation on the platform.” (Dkt. No. 34: Defs. Rule 56.1 Stmt. ¶ 16.) Additionally, Judlau disputes Nancy Rodland's claim that no one warned her that the platform was under construction, asserting that the train conductors were “[s]upposed to announce” that the subway station was under construction. (Ex. E: Shah Dep. at 60; Ex. J: Rothstein Aff. ¶ 10.) As these material facts are in dispute, summary judgment is inappropriate.³ ( See cases cited on pages 3–5 above.)

Relying on Shmushkina v. Price is Right of Brooklyn, Inc., 16 Misc.3d 883, 839 N.Y.S.2d 683 (Sup.Ct. Kings Co.2007), Judlau argues that it is entitled to summary judgment because plaintiffs have failed to provide expert testimony that the cement transition was inherently unsafe. (Dkt. No. 41: Judlau Reply Br. at 7–8.) In Shmushkina, the plaintiff slipped and fell while walking down a ramp as she was leaving the defendant's grocery store. 16 Misc.3d at 884, 839 N.Y.S.2d at 683. The plaintiff sued the defendant for negligence, arguing that “the ramp was inherently dangerous because in her...