UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL

REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS

OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS

OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A

RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL

OR RES JUDICATA.

At a stated Term of the United Stated Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 3rd

day of November, two thousand and five.

Present: RALPH K. WINTER,

ROSEMARY S. POOLER,

SONIA SOTOMAYOR,

Circuit Judges.

GUADALUPE ORTIZ,

Plaintiff-Appellant,

-v- (04-6146-cv)

PATHMARK STORES, INC.,

Defendant-Appellee.

Appearing for Plaintiff-Appellant: Michael S. Grossman, Law Offices of Michael S. Grossman,

Esq., New York, NY.

Appearing for Defendant-Appellee: David P. Redmond, Kral, Clerkin, Redmond, Ryan, Perry, &

Girvan, New York, NY.

Appeal from the United States District Court for the Southern District of New York,

(Robert W. Sweet, District Judge).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Plaintiff-Appellant Guadalupe Ortiz ("Ortiz") appeals from an October 20, 2004 order of the United States District Court for the Southern District of New York (Sweet, J.) granting summary judgment to Defendant-Appellee Pathmark Stores, Inc. ("Pathmark") on Ortiz's negligence claim based on her slip and fall on grapes in a Bronx-area Pathmark on September 18, 2001. We assume the parties' familiarity with the facts, procedural history, and specification of issues on appeal.

As a preliminary matter, we note that our jurisdiction is proper under 28 U.S.C. § 1332 because Ortiz is a citizen of New York, and Pathmark is a citizen of New Jersey, and Ortiz asserts an amount in controversy exceeding $75,000­indeed, she claims damages of $500,000.

We review the district court's grant of summary judgment de novo. Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992). In determining whether to grant summary judgment under Fed R. Civ. P. 56, we view the evidence in the light most favorable to the nonmoving party, and we draw all reasonable inferences in its favor. Id.; Del. & Hudson Ry.

Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990) (emphasis added). However, summary judgment is mandated when the party bearing the burden of proof at trial fails to make a sufficient showing to establish the existence of an element essential to that party's case.

Celotex Corp. v. Catrett,477 U.S. 317, 322 (1986). In this instance, there can be no genuine issue of material fact, since failure of proof "concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

Ortiz has failed to adduce sufficient evidence to support every essential element of her claim. According to New York state law, on which both parties rely, an essential element of negligence­when a shopkeeper did not either cause or receive actual notice of a condition­is constructive notice of the existence of the condition leading to injury. Taylor v. United States, 121 F.3d 86, 89-90 (2d Cir. 1997); see Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837-38 (N.Y. 1986); Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 626 (N.Y. 1985). `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.' Taylor, 121 F.3d at 90 (quoting Gordon, 67 N.Y.2d at 837).

This case is similar to Gordon. In Gordon, the New York Court of Appeals held that constructive notice was lacking because no one had observed the paper on which plaintiff slipped prior to the accident, and no one described it as dirty or worn, which would have provided some circumstantial evidence that the piece of paper was on the floor for some period of time. Gordon, 67 N.Y.2d at 838. The fact that plaintiff, in Gordon, observed other pieces of paper on another portion of the steps approximately ten minutes before his fall was legally insufficient to charge defendant with constructive notice of the paper on which plaintiff slipped. Id.

In the instant case, Ortiz testified that she did not know how long the grapes were on the floor in the area where she slipped, nor did she know of anyone with such information. She did not offer any evidence that the grapes were squished so that one could reasonably infer that the grapes were on the floor for an extended time period. The only circumstantial evidence that she offered to prove the duration of time that the grapes were on the floor in the area of the accident prior to her fall was that fifteen minutes earlier, she noticed grapes on the floor in the produce section, approximately four to five aisles away, and her witness, Paul Rivera ("Rivera"), observed grapes "leading from the produce section" ten to fifteen minutes after the fall. Rivera did not testify that he observed a trail of grapes leading from the produce section to the area between aisles five and six,1 and his testimony cannot necessarily be said to imply this. Absent evidence regarding the length of time the grapes were on the floor in the area where Ortiz actually fell, Ortiz has failed to satisfy her burden, and summary judgment should be granted.

Accordingly, for the reasons set forth above, the judgment of the District Court is hereby AFFIRMED.

FOR THE COURT: Roseann B. MacKechnie, Clerk of Court By:

1Ortiz's brief characterizes Rivera's testimony as showing an `arrow' of grapes from the produce section to the back of the store, but Rivera's deposition does not support this characterization.