Singh v. Home Depot U.S.A., Inc. , 580 F. App'x 24 ( 2014 )

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”).
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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
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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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