Zora MATTEO, Plaintiff, v. KOHL'S DEPARTMENT STORES, INC., et al., Defendants No. 09 Civ. 7830(RJS) March 06, 2012 Counsel Charles Martin Arnold of Abraham, Lerner & Arnold, LLP, New York, NY, for Plaintiff. Charles Taylor Glaws, Gina Marie Arnedos, and Steven F. Goldstein of Gruvman, Giordano & Glaws, LLP, New York, NY, for Defendants. Sullivan, Richard J., United States District Judge MEMORANDUM AND ORDER *1 Plaintiff Zora Matteo (“Plaintiff”) brings this action against Kohl's Department Stores, Inc. and Kohl's Illinois, Inc. (“Defendants”), asserting a claim for negligence under New York common law, Now before the Court is (1) Plaintiffs motion for spoliation sanctions and (2) Defendants' motion for summary judgment. For the reasons set forth below, Plaintiff's motion for spoliation sanctions is granted in part and denied in part, and Defendants' motion for summary judgment is granted. I. BACKGROUND A. Facts[1] On December 11, 2008, Plaintiff tripped and fell while shopping at a Kohl's Department Store in Yonkers, New York. (Defs. 56.1 ¶ 1 .) Specifically, Plaintiff approached a temporary display rack in the middle of the main aisle of the store to look for t-shirts for her son. (Defs. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) Unable to find anything suitable, Plaintiff began to walk away. (Defs. 56.1 ¶¶ 3–4.) However, Plaintiff's left foot got stuck in the wheel at the base of the display rack and she fell, landing on her left shoulder. (Defs. 56.1 ¶ 4.) Plaintiff testified that her foot was caught because “the wheel was sticking out” from the base of the display. (Pl. 56.1 ¶ 4; Defs. 56.1 ¶ 4.) As a result of the fall, Plaintiff fractured and dislocated her left shoulder. B. Procedural History Plaintiff commenced this action by filing a complaint on September 14, 2009. The action was originally assigned to the Honorable Stephen Robinson, District Judge. This matter was subsequently transferred to my docket on November 15, 2010. Plaintiff filed her motion for spoliation sanctions on May 9, 2011, and Defendants filed their motion for summary judgment on May 10, 2011. The motions were both fully submitted as of June 13, 2011. II. DISCUSSION A. Spoliation Sanctions 1. Background After Plaintiff tripped, the store's operations manager, Nancy D'Onofrio, ran to the scene, where she found Plaintiff lying on the floor. (Defs. 56.1 ¶ 13.) D'Onofrio later prepared a Kohl's Customer Incident Report in accordance with Kohl's standard policies, which instruct employees responding to incidents to “verify that Loss Prevention has retained any video footage of the incident.” (Pl.'s 56.1 ¶ 14; Decl. of Charles M. Arnold, dated May 9, 2011, Doc. No. 47, (“Arnold Sanctions Decl.”), Exs. E, G.) To prepare the report, D'Onofrio called the store's Loss Prevention Department, which operated the store's video surveillance system, to inquire if Plaintiff's accident was recorded. (Arnold Sanctions Decl. Ex. F at 36.) D'Onofrio stated that she was told Plaintiffs accident was not captured because the Loss Prevention personnel “were watching a shoplifter in the men's fitting room and the camera was ... pointed in the direction of the men's fitting room at the time.” (Id. Ex. F at 35–36.) Defendants have not identified who reported this to D'Onofrio, and Noberto Soto, who was on duty in the Loss Prevention Department at the time of Plaintiff's accident, testified that he did not remember being asked to look for footage of Plaintiff's accident. (Id. Ex. J at 22.) Additionally, he did not recall tracking a suspected shoplifter on that day. (Id. Ex. J at 19.) Kirt Wildy, the store's Loss Prevention Supervisor, also testified that he had no recollection of any relevant events from that day, regarding either Plaintiffs fall or the tracking of a possible shoplifter. (Id. Ex. I at 58–59.) *2 Defendants' expert, James Burton, submitted a report that summarized a conversation he had with the store's Security Supervisor, Kathy Wilson. According to the report, Wilson “recalled how on the date of the incident, the security office was tracking a suspected shoplifter in the vicinity of the area where Plaintiff fell.” (Id. Ex. N ¶ 6.) As a result, the report notes that the Loss Prevention Department “did not find any video record of the Plaintiff or any other disturbance in the area where Plaintiff fell.” (Id.) However, Defendants have not submitted an affidavit from Wilson. Additionally, Soto testified that he had retrieved a timecard for the date of the accident and determined that, while Wilson had worked on the day of Plaintiffs accident, she was not working during the time of the incident. (Id Ex. J at 23 .) In any event, the shoplifter in question—if he even existed—was not arrested, and the police never requested that Defendants keep the surveillance footage of him. (Id. Ex. F at 36.) Kohl's standard practice is to maintain surveillance footage for only sixty days, unless relevant to an accident in the store or law enforcement requests that it be kept. (Id. Ex. E ¶ 2, Ex. L at 6.) Accordingly, Defendants did not retain the surveillance footage from the time of Plaintiff's accident. According to Plaintiffs expert, who conducted an examination of the surveillance system, the area where Plaintiff fell should have been monitored by three separate and distinct pan, tilt, and zoom cameras. (Id. Ex. N at 13.) Defendants have not offered evidence directly from anyone who personally reviewed the surveillance footage concerning whether Plaintiff's accident was captured or whether anyone recalled taking the cameras off their default setting and focusing them on a shoplifter. (Pl.'s Mem. in Supp. of Rule 37 Mot. at 9.) Because the surveillance footage was not preserved, Plaintiff now asks the Court to impose spoliation sanctions against Defendants. (Id. at 5.) 2. Analysis Plaintiff argues that she is entitled to sanctions in the form of an adverse inference instruction and/or costs because of Defendants' failure to preserve and produce video surveillance footage from the time of the accident. The Court has the inherent power to impose sanctions for the spoliation of evidence to preserve the integrity of judicial proceedings. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999). “The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge and is assessed on a case-by-case basis.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir.2001) (internal citation omitted). For the reasons set forth below, the Court finds that an adverse inference instruction would be inappropriate. However, the Court finds that a sanction, in the form of reimbursement of fees and costs incurred in connection with determining whether Plaintiff's accident was recorded and in connection with her motion for spoliation sanctions, is appropriate in this case. a. Adverse Inference Instruction *3 The “intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.” Siggelko v. Kohl's Dep't Stores, Inc., No. 06 Civ. 2281(JS), 2009 WL 750173, at *2 (E.D.N.Y. Mar.17, 2009) (citing Kronisch v. United States, 150 F.3d 112, 126–28 (2d Cir.1998)); accord Gutierrez–Bonilla v. TargetCorp., No. 08 Civ. 3985(JS)(AKT), 2009 WL 5062116, at *3 (E.D.N.Y. Dec. 16, 2009). An adverse inference instruction is a severe sanction. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F.Supp.2d 456, 467 (S.D.N.Y.2010); Harkabi v. SanDisk Corp., 275 F.R.D. 414, 418 (S.D.N.Y.2010). The Second Circuit has explained that: [A] party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed “with a culpable state of mind”; and (3) that the destroyed evidence was “relevant” to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002). The Court analyzes these three elements in turn. i. Obligation to Preserve To the extent that the surveillance system captured Plaintiff's incident, Defendants were obligated to preserve that video footage. An obligation to preserve evidence arises when a party has notice that “the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to a future litigation.” Fujitsu, 247 F.3d at 436. Although Plaintiff did not file the instant lawsuit until approximately ten months after the accident, and although Defendants typically retain the footage captured by their video surveillance system for only sixty days, there can be little doubt that, at the time of the accident, Defendants could have expected Plaintiff to file a lawsuit. Cf. Siggelko, 2009 WL 750173, at *3 (noting that “it is clear that Kohl's had the obligation to preserve in its files the evidence collected after the accident” because it could have anticipated that the plaintiff would file a lawsuit in light of the injuries he suffered). Indeed, the prospect of litigation in situations such as this is reflected in Defendants' own internal policies, which direct store managers to retain any video footage of incidents that take place within the store. (Arnold Sanctions Decl. Ex. G.) D'Onofrio responded to the scene of Plaintiff's accident and later completed an incident report, which was forwarded to Defendants' headquarters. (Id.) Therefore, because Defendants were aware of Plaintiff's injury—consistent with their internal policy that requires the preservation of relevant video surveillance footage in situations such as this—Defendants could have reasonably anticipated that Plaintiff would bring a lawsuit. Thus, Defendants were obligated to preserve any video surveillance footage of Plaintiff's accident. *4 Without the video footage that has been destroyed, it is impossible to determine with certainty whether the surveillance system captured Plaintiff's accident. Plaintiff has offered extensive evidence that the surveillance system includes many cameras that, in the ordinary course, would have recorded her fall. (Id. Exs. L, M.) Defendants do not dispute this but assert that the accident was not captured because all cameras were focused on a shoplifter in the men's fitting room at the time of Plaintiff's fall. (Id. Ex. F at 35–37.) However, Defendants have not sufficiently established this assertion. D'Onofrio testified at her deposition that she asked the individual operating the video surveillance system whether there was any video footage of Plaintiff's accident and was informed that there was not. (Id. Ex. F. at 37.) D'Onofrio further testified that she did not perform any additional investigation to determine if there was relevant video footage. (Id. Ex. F. at 35–37.) Soto, the employee responsible for operating the video surveillance system at the time of the incident, testified that he did not recall looking for footage of Plaintiff's accident or taking the surveillance cameras off of their default settings and directing them to focus on a shoplifter in the men's fitting room. (Id. Ex. J at 16–17.) Thus, this situation is quite different from that presented in Gutierrez–Bonilla, where the defendant submitted an affidavit from an individual who personally reviewed the surveillance footage and determined that Plaintiffs accident had not been recorded. 2009 WL 5062116, at *3–4. Here, Defendants have not offered evidence directly from any individual who personally reviewed the footage to establish that Plaintiff's injury was not captured by the surveillance cameras. The only evidence offered by Defendants are hearsay statements made to (1) D'Onofrio from an unidentified individual operating the surveillance system (Arnold Sanctions Decl. Ex. F at 37), and (2) Defendants' expert from Wilson (id. Ex. N at ¶ 6). This hearsay testimony is insufficient to rebut the evidence adduced by Plaintiff suggesting that her accident would have been recorded. Thus, the Court concludes that the accident may well have been captured by the surveillance system and, knowing that Plaintiff might bring a lawsuit, Defendants had a duty to preserve that video footage. ii. Culpable State of Mind Plaintiff has sufficiently established that Defendants destroyed the video footage with a culpable state of mind. A party may establish that evidence was destroyed with a “culpable state of mind” by showing that it was destroyed, “knowingly, even if without intent to [breach a duty to preserve it], or negligently.” Residential Funding, 306 F.3d at 108 (citation and internal quotation marks omitted; emphasis and alteration in original). Because Defendants have failed to rebut Plaintiff's showing that her accident would have been recorded, the failure to preserve this evidence violated Defendants' internal policies. Defendants' failure to comply with their own internal policies was negligent and, thus, sufficiently establishes the culpable state of mind requirement. iii. Relevance *5 Finally, “the party seeking an adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the nature alleged by the party affected by its destruction.” Id . at 109 (citation and internal quotation marks omitted). To make this showing, the party seeking an adverse inference instruction must establish more than that the evidence is sufficiently probative to meet the standard under Federal Rule of Evidence 401. Id.; see Port Auth. Police Asian Jade Soc. ‘y of N.Y. & N.J. Inc. v. Port Auth. ofN.Y. & NY., 601 F.Supp.2d 566, 570 (S.D.N.Y.2009); cf. Gutierrez–Bonilla, 2009 WL 5062116, at *6 (holding that, if recorded, footage showing plaintiff's accident would have been relevant to show notice of the liquid that plaintiff slipped and fell on). “A moving party may obtain modest sanctions by showing only that the lost evidence was pertinent to its claims. However, where more severe sanctions are at issue, the movant must demonstrate that the lost information would have been favorable to it.” In re WRT Energy Secs. Litig., 246 F.R.D. 185, 197 (S.D.N.Y.2007). When a party destroys evidence in bad faith or through gross negligence, “that same evidence of the opponent's state of mind will frequently also be sufficient to permit a jury to conclude that the missing evidence is favorable to the party (satisfying the ‘relevance’ factor).” Residential Funding, 306 F.3d at 109. Plaintiff has not articulated how anything depicted on the video, but not captured by the photographs that were produced in discovery, would be particularly relevant to establishing liability. Although the photos do not depict the precise layout of the display racks at the time of the accident, it is undisputed that these displays were positioned roughly in the center of the store's main aisle and were not in perfect alignment. (Pl.'s 56.1 ¶¶ N–O.) Similarly, Defendants do not dispute that Plaintiff tripped when her foot was caught in the out-turned caster wheel, and therefore, the Court assumes that the caster wheel was turned outward from the display rack at the time of the accident. In this situation a video of the accident could potentially have some probative value. But Plaintiff has not articulated what the video might show that would be relevant to establishing liability beyond or different from what is depicted in the photographs taken after the accident. Indeed, Glassberg v. Staples the Office Superstore East, Inc., No. 08 Civ. 2132(KAM)(JMA), 2010 WL 3924682 (E.D.N.Y. Sept. 13, 2010) on which Plaintiff heavily relies—is readily distinguishable from this case. In Glassberg, the court resorted to surveillance footage to see how the hazard was positioned relative to the plaintiff and how visible it was when viewed against the carpet and other items in the area of the store. Id. at *4. Here, the same information that the Court gleaned from the video in Glassberg is communicated through the photographs. Plaintiff takes issue with certain aspects of the photos, as discussed below, but none of Plaintiff's objections are relevant to her claim. Accordingly, the Court cannot conclude that the video evidence is sufficiently relevant to warrant a sanction as severe as an adverse inference instruction. b. Monetary Sanctions *6 Alternatively, Plaintiff seeks an award of attorneys' fees and costs incurred in connection with determining whether her accident was recorded. Monetary sanctions may be appropriate “to punish the offending party for its actions [and] to deter the litigant's conduct, sending the message that egregious conduct will not be tolerated.” Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 292 (S.D.N.Y.2009) (citation and internal quotation marks omitted; alteration in original). “Sanctions should be designed to (1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.” Adorno v. Port Auth. of N.Y. & N.J., 258 F.R.D. 217, 227–28 (S.D.N.Y.2009) (citation and internal quotation marks omitted). As a consequence of Defendants' failure to preserve the video footage and directly address whether Plaintiff's accident was recorded, Plaintiff was forced to expend substantial resources. In light of both how the accident occurred and the availability of photographs taken after the incident, the video footage would have been of marginal relevance. Nonetheless, Defendants should have preserved this footage, and their failure to do so should not be countenanced. Therefore, the Court finds that Plaintiff is entitled to an award of attorneys' fees and costs associated with determining whether her accident was recorded, including the costs incurred in bringing this motion for spoliation sanctions. Cf, e.g., Phoenix Four, Inc. v. Strategic Res. Corp., No. 05 Civ. 4837(HB), 2006 WL 1409413, at *6, *9 (S.D.N.Y. May 23, 2006) (denying evidentiary sanctions but imposing monetary sanctions for the spoliation of evidence). B. Summary Judgment 1. Standard of Review The standard for summary judgment is well settled. Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be granted “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 Celotex Corp. v. Catrett, All U.S. 317, 322–23 (1986). The moving party bears the burden of proving that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has met its burden, the nonmoving party “must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (internal citations and quotation marks omitted). In ruling on a motion for summary judgment, the court must resolve any ambiguity in favor of the nonmoving party. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments,” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). As a result, summary judgment will not issue where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, All U.S. at 248. However, “a complete failure of proof concerning an essential element of the nonmoving party's case” renders summary judgment proper. Celotex, All U.S. at 323. 2. Analysis *7 To establish a prima facie case of negligence under New York law, a plaintiff must show that: “(1) the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered damage as the proximate result of that breach.” See Stagl v. Delta Airlines, Inc., 52 F.3d 463, 467 (2d Cir.1995) (citing Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 (1985)). Property owners have a duty to provide reasonably safe premises whenever the general public is invited onto the property. See Michalski v. Home Depot, Inc., 225 F.3d 113, 117 (2d Cir.2000); Peralta v. Henriquez, 100 N.Y.2d 139, 143, 760 N.Y.S.2d 741, 790 N.E.2d 1170 (2003). However, a property owner generally need not protect or warn customers against risks posed by conditions that are open and obvious and, as a matter of law, not inherently dangerous. See Clunis v. N.Y.C. Transit Auth., No. 10 Civ. 6063(JBW), 2011 WL 5825787, at *1 (E.D.N.Y. Nov.17, 2011); Schulman v. Old Navy/The Gap, Inc., 45 A.D.3d 475, 845 N.Y.S.2d 341, 342 (App. Div. 1st Dep't 2007). Whether a hazard is open and obvious is typically a question of fact, but a court may resolve this question when the established facts compel the conclusion that the hazard was open and obvious. See Michalski, 225 F.3d at 121; Schulman, 845 N.Y.S.2d at 342 (reversing and granting summary judgment in favor of store because there was no question that the bracket the shopper tripped over was open and obvious and not inherently dangerous). The Second Circuit undertook a comprehensive review of New York premises liability law in Michalski and concluded that the New York Court of Appeals would find “that the open and obvious nature of a dangerous condition on its property does not relieve a landowner from a duty of care where harm from an open and obvious hazard is readily foreseeable by the landowner and the landowner has reason to know that the visitor might not expect or be distracted from observing the hazard.” 225 F.3d at 121. Specifically, landowners may have a duty of care in two related situations. First, if “customers would not expect to find the dangerous condition where it is,” the store owner may have a duty to warn or protect. Id. Second, if the “defendant's displays of merchandise—particularly the displays above eye-level—would foreseeably distract the plaintiff to such an extent that she could not reasonably have been expected to observe the condition,” the store owner may have a duty to warn or protect. Id. As an initial matter, the Court concludes that it cannot credit Plaintiff's contention that the wheels on the display rack protruded six to twelve inches out into the aisle from the base of the display rack. (Pl. 56.1 ¶ O; Decl. of Charles M. Arnold, dated May 25, 2011, Doc. No. 51, (“Arnold Summ. J. Decl.”), Ex. F ¶ 4.) Plaintiff submitted photos of the display rack that she tripped over, which clearly depict the caster wheels and conclusively establish that the wheels protrude no more than two to three inches from the side of the display. (Defs. 56.1 ¶ 7; Arnold Summ. J. Decl. at Exs. G, J.) Plaintiff takes issue with how some of the photos, which were taken by Defendants, are framed, whether they depict a broad enough portion of the area surrounding where she fell, and whether the display racks were as displaced as they were at the time of her accident. (Pl. 56.1 ¶¶ 17, 20) However, Plaintiff does not argue that the photos fail to fairly or accurately depict the caster wheels on the base of the display rack that she tripped over. (Defs. 56.1 ¶ 7.) While the Court cannot make credibility determinations in deciding a motion for summary judgment, it need not credit assertions that are wholly contradicted by photographic evidence in the record. See, e.g., Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). Accordingly, the Court concludes that the caster wheels extended no more than two to three inches out from the base of the display. *8 Moreover, based on the record developed by the parties and the portions specifically cited in their briefs, the Court concludes that the display rack and protruding caster wheel were open and obvious and not inherently dangerous. A condition is open and obvious if it is readily observable by those “employing the reasonable use of their senses.” Pinero v. Rite Aid of N.Y., Inc. ., 294 A.D.2d 251, 743 N.Y.S.2d 21, 23 (App. Div. 1st Dep't 2002) (citation and internal quotation marks omitted). Even assuming that the display rack was out of alignment and that the caster wheel Plaintiff tripped over protruded two to three inches outward when it should have been pointed inward, any hazard posed by the display rack should have been observable to those employing reasonable use of their senses. A review of the record reveals that Plaintiff has failed to raise a material question of fact as to whether this condition was open and obvious. The argument section of Plaintiff's opposition brief does not contain a single citation to the record. (Pl.'s Br. in Opp'n to Defs.' Mot. for Summ. J. at 8–13.) However, the record reflects that the display that Plaintiff tripped over was in a well lit area arid clearly visible, as Plaintiff herself acknowledges by virtue of the fact that she was standing in front of it inspecting merchandise before she tripped. (Defs. 56.1 ¶¶ 2–4.) Additionally, the record reflects that there was ample space for shoppers to pass around the display racks, and Plaintiff has not argued otherwise. (Arnold Summ. J. Decl. Ex. J; Arnold Sanctions Decl. Ex. H; Defs. 56.1 ¶ 20.) Based on these facts, the Court cannot conclude that this display rack was anything other than open and obvious and not inherently dangerous. Plaintiffs assertion that she did not see the caster wheel at the base of the display rack is likewise insufficient to raise a material question of fact as to whether the hazard was open and obvious. Individuals who trip over objects frequently do so because they failed to see the obstacle, but a plaintiff's failure to see a hazard does not necessarily preclude the entry of summary judgment in favor of a landowner. See, e.g., Kaufmann v. Lerner N.Y., Inc., 41 A.D.3d 660, 838 N.Y.S.2d 181, 182 (2007) (affirming grant of summary judgment in favor of store owner where plaintiff tripped over a rolling clothing rack); Schulman, 845 N.Y.S.2d at 342 (reversing denial of summary judgment because condition was open and obvious despite evidence that the shopper failed to see the obstacle she tripped over). In this case, there is no dispute that Plaintiff failed to see the caster wheel that caused her to trip. (Pl.56.¶ M.) However, because the display rack itself was clearly visible and not in an unexpected area, Plaintiff's failure to notice the caster wheel does not raise a material question of fact as to whether the outturned wheel was open and obvious. Plaintiff's reliance on Beck v. Bethpage Union Free School District, 82 A.D.3d 1026, 919 N.Y.S.2d 192 (App. Div.2d Dep't 2011), does not alter that conclusion. In Beck, the plaintiff tripped over the wheel of a rolling bookcase placed perpendicular to a bookshelf at the end of an aisle. Id. at 193. Because the bookcase was placed at the end of the aisle, the plaintiff had not seen it as she approached and tripped over an outtumed wheel. Id. at 194. The court found that situation presented a triable question of fact as to whether the hazard was open and obvious. Id. Here, however, there is no dispute that Plaintiff saw the display rack before the accident. Indeed, she stopped to examine merchandise on the rack and tripped only when she began to walk away. (Defs. 56.1 tt 2–4.) The photos of the display racks also reflect that the caster wheels supporting the structure were visible (Arnold Summ. J. Decl. Ex. G), and Plaintiff makes no argument as to why the wheel would not have been detected by an individual making ordinary use of his or her senses. Cf. Pinero, 743 N.Y.S.2d at 23 (affirming grant of summary judgment because the obstacle was in plain view and readily observable). Therefore, Plaintiffs failure to see and appreciate the full scope and dimensions of the display rack, particularly the outtumed caster wheel, does not raise a material question of fact as to whether the condition was open and obvious. Put simply, the wheel was visible, and Plaintiff saw the display rack and had ample room to maneuver around it. *9 Plaintiff also has not adduced sufficient evidence to raise a material question of fact as to whether any signs or advertisements in the store distracted her attention from any hazard posed by the base of the display rack. As noted above, a store owner may have a duty to warn customers of otherwise open and obvious, and not inherently dangerous, hazards when its store is arranged in such a way as to foreseeably distract shoppers from those otherwise obvious hazards. Michalski, 225 F.3d at 120–21. Defendants admit that they employ a “Visuals Supervisor” to coordinate promotional signage throughout the store and that, on the day of the accident, there were several brightly colored promotional signs hanging at Plaintiff's eye-level. (Pl. 56.1 Stmt. ¶¶ X–Y; Arnold Summ. J. Decl. Ex. H) Indeed, Plaintiff asserts that she was looking at a promotional sign about ten feet away in another department when the accident occurred. (Arnold Summ. J. Decl. Ex. ¶ 8.) However, the photographs and other record evidenee do not establish that the store was arranged in such a way that shoppers would be distracted from otherwise open and obvious hazards on the ground. (Id. at Ex. H.) To the contrary, the photographs submitted by Plaintiff's sister, taken the day after the accident, depict a fairly typical store without items located high off of the ground. (Id.); cf. Michalski, 225 F.3d at 115 (denying summary judgment for store owner in part because the store stacked merchandise as high as twenty feet off of the floor and the item the shopper was looking for was above eye-level), Accordingly, Plaintiff has not identified or marshaled evidence that raises a triable issue of fact as to whether the displays in the store could foreseeably distract a shopper such that Defendants had a duty to warn or protect Plaintiff from any hazard posed by the caster wheels at the base of the display rack, Finally, it is not relevant that the placement of the display rack in the main aisle of Defendants* store may have been inconsistent with the facility plan filed with the city of Yonkers and may have violated building regulations, PlaintifTs own explanation for how the accident transpired reflects that the placement of the display racks—even if they were askew and in violation of the filed building plan—was not a contributing factor to her fall. An item that would otherwise be open and obvious may nonetheless be a hazard, from which a landowner has a duty to warn or protect people on his property, if it is positioned in an unexpected area. See Tagliavia v. Trump Castle Assocs., 7 F. App'x 37, 39 (2d Cir.2001) (vacating grant of summary judgment in favor of restaurant owner where patron tripped over a walker left in the middle of an aisle while walking back from a buffet); Clark v. AMF Bowling Ctrs., 83 A.D.3d 761, 921 N.Y.S.2d 273, 274 (App. Div, 1st Dep't 2011) (holding that there were material questions of fact as to whether a knee-high table was open and obvious because of the dim lighting in the facility and unusual placement of furniture). Here, however, Plaintiff approached the display rack and was inspecting the merchandise on it for several minutes before she tripped. (Defs. 56.1 ¶¶ 2–3.) To the extent that the display rack may have been out of alignment or positioned in an unexpected part of the store, that did not cause Plaintiff's accident because she did not happen upon it unexpectedly. Instead, Plaintiff tripped only when she attempted to walk away from it. *10 Accordingly, because Defendants have established that any hazard posed by the display rack and caster wheel affixed to the bottom of it was open and obvious and not inherently dangerous, summary judgment in favor of Defendants is appropriate. III. CONCLUSION For the reasons set forth above, PlaintifTs motion for spoliation sanctions is granted in part and denied part. Additionally, while the Court is sympathetic to PlaintifTs accident and the injuries she sustained as a result of her fall, Defendants' motion for summary judgment is granted. IT IS HEREBY ORDERED THAT Plaintiff may apply for reasonable fees and costs incurred in connection with her motion for spoliation sanctions and discovery to determine whether Plaintiffs accident was recorded by Defendants' video surveillance system by March 30, 2012. Defendants' response is due by April 13, 2012. Plaintiff's reply is due by April 20, 2012. The Clerk of the Court is respectfully directed to terminate the motions located at Doc. Nos. 38 and 41. SO ORDERED. Footnotes [1] The following facts are taken from the pleadings, the parties' Local Civil Rule 56.1 Statements, the affidavits submitted in connection with the instant motions, and the exhibits attached thereto. The facts are undisputed unless otherwise noted. Where one party's 56.1 Statement is cited, the other party does not dispute the fact asserted, has offered no admissible evidence to refute that fact, or merely objects to inferences drawn from that fact.