Opinion
Index 602922/2017
12-18-2019
LORRAINE FERRARO and GEORGE FERRARO, her husband Plaintiffs, v. GOOD SAMARITAN HOSPITAL MEDICAL CENTER, Defendant.
Unpublished Opinion
Motion Submitted: 10/10/2019.
PRESENT: Honorable Karen V. Murphy Justice.
SHORT FORM ORDER
The following papers read on this motion:
Notice of Motion/Order to Show Cause............ X
Answering Papers........................................ X
Reply....................................................... X
Briefs: Plaintiffs/Petitioner's........................
Defendant' s/Respondent's..................
This motion by the defendant Good Samaritan Hospital Medical Center ("the Hospital") for an order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint is determined as provided herein.
The plaintiffs in this action seek to recover damages for personal injuries the plaintiff Lorraine Ferraro (the plaintiff) allegedly suffered as the result of her fall in the Hospital's parking lot during the early morning hours of October 25, 2016. She alleges that she fell in a depressed, cracked, uneven, broken and hazardous area of the Hospital's visitor's parking lot. The Hospital seeks summary judgment dismissing the complaint based on the plaintiffs testimony at her examination-before-trial at which she testified that she fell as she was stepping from the sidewalk to the parking lot and that she not feel her foot hit the asphalt before her ankle buckled, causing her to fall. In addition, it maintains that the defect that caused the plaintiffs fall was trivial based upon photographs taken by the plaintiffs husband George Ferraro on the day of her accident which were identified as the site of the plaintiffs accident by both of the plaintiffs at their examinations-before-trial. Finally, it seeks dismissal of the complaint based upon a lack of actual or constructive notice of the defect that allegedly caused the plaintiff s fall.
"On a motion for summary judgment, the moving party has the burden to establish 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734 [2014], quoting Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). "If the moving party fails to meet this initial burden, summary judgment must be denied 'regardless of the sufficiency of the opposing papers'" (Voss v Netherlands Ins. Co., 22 N.Y.3d at 734, quoting Vega v Restani Constr. Corp., 18 N.Y.3d 499 [2012] [internal quotation marks, citation and emphasis omitted]). "In other words, the burden does not shift to the non-moving party to persuade the court against summary judgment" (Voss v Netherlands Ins. Co., 22 N.Y.3d at 734).
While the plaintiff did at times testify at her examination-before-trial that her foot did not hit the asphalt before she began to fall, she also testified that her foot went into a depression before her ankle buckled. In light of the conflicting evidence submitted in support of the motion, the Hospital has failed to establish their prima facie entitlement to judgment as a matter of law (Cruz v Valentine Packaging Corp., 167 A.D.3d 707, 708-09 [2d Dept 2018], citing Goulet v Anastasio, 148 A.D.3d 783, 784 [2d Dept 2017]; Fajardo v City of New York, 95 A.D.3d 820, 821 [2d Dept 2012]; Martinez vMartinez, 93 A.D.3d 767, 768 [2d Dept 2012]; Camarillo v Sandoval, 90 A.D.3d 593, 594 [2d Dept 2011]). "Any inconsistencies in [the plaintiffs] deposition testimony raise[s] an issue of credibility that must be resolved by the factfinder" (Cruz v Valentine Packaging Corp., 167 A.D.3d at 709, citing Martinez v Martinez, 93 A.D.3d at 768; Camarillo v Sandoval, 90 A.D.3d at 594).
"[Property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (Kavanagh v Archdiocese of City of New York, 152 A.D.3d 654, 655 [2d Dept 2017], citing Trincere v County of Suffolk, 90 N.Y.2d 976, 977 [1979]). "There is no 'minimal dimension test or per se rule' that the condition must be of a certain height or depth to be actionable" (Kavanagh v Archdiocese of City of New York, 152 A.D.3d at 655, quoting Trincere v County of Suffolk, 90 N.Y.2d at 977 [internal quotation marks omitted]). "In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, 'including the width, depth, elevation, irregularity and appearance of the defect along with the "time, place and circumstance" of the injury"' (Kavanagh v Archdiocese of City of New York, 152 A.D.3d at 655, quoting Trincere v County of Suffolk, 90 N.Y.2d at 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]; citing Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 [2015])." 'Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable'" (Kavanagh v Archdiocese of City of New York, 152 A.D.3d at 655, quoting Schenpanski v Promise Deli, Inc., 88 A.D.3d 982, 984 [2d Dept 2011]).
'"A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact"' (Kavanagh v Archdiocese of City of New York, 152 A.D.3d at 655, quoting Hutchinson v Sheridan Hill House Corp., 26 N.Y.3d at 79).
Standing alone, the photographs of the site of the plaintiffs accident which have been submitted by the Hospital do not establish that the defect that is alleged to have caused the plaintiffs fall was trivial.
In a premises liability case, a defendant real property owner or a party in possession or control of real property that moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (Williams v Is. Trees Union Free School DisL, _ A.D.3d_, 2019 WL 6139187 at * 1 [2d DeptNov. 20, 2019], citing Pilgrim v Avenue D Realty Co., 173 A.D.3d 788 [2d Dept 2019]; Gorokhovskiy v NYU Hosps. Ctr., 150 A.D.3d 966 [2d Dept 2017]; Kyte v Mid-Hudson Wendico, 131 A.D.3d 452 [2d Dept 2015], Iv denied, 26 N.Y.3d 915 [2015]; Pampalone v FEE Van Dam, LLC, 123 A.D.3d 988 [2d Dept 2014]). "A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Williams v Is. Trees Union Free School DisL, 2019 WL 6139187 at * 1, citing Gordon v American Museum of Natural History, 67 N.Y.2d836, 837-838 [1986]; Chang v Marmon Enters., Inc., 172 A.D.3d 678 [2d Dept 2019]). "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Williams v Is. Trees Union Free School Dist, 2019 WL 6139187 at * 1, citingRadosta v Schechter, 171 A.D.3d 1112, 1113 [2d Dept 2019]; Lombardo v Kimco Cent. Islip Venture, LLC, 153 A.D.3d 1340 [2d Dept 2017]; Birnbaum v New York Racing Assn., Inc., 57 A.D.3d 598, 598-599 [2d Dept 2008]).
The hospital maintains that it lacked actual or constructive notice of the defect that is alleged to have caused the plaintiffs fall based upon the testimony of its Director of Plant Engineering, Michael Meade, at his examination-before-trial. He testified in general as to the Hospital's maintenance policies with respect to the parking lot. He also testified that he learned of the plaintiffs accident some time in 2017 at which time he conducted his own investigation of this incident. He testified that he was unable to discern the area where the plaintiff fell as he did not observe any sort of depression or unlevel pavement in the subject parking lot. Meade's testimony fails to establish a lack of notice to the Hospital. He provided no information regarding when the lot was last inspected or maintained prior to the plaintiffs accident nor does he provide any information indicative of the fact that the lot was in the same condition when he conducted his investigation as it was when the plaintiff fell.
In view of the fact that the Hospital has not established its entitlement to summary judgment, the burden does not shift to the plaintiffs to establish the existence of issues of fact and the sufficiency of their papers in opposition is irrelevant.
In conclusion, the defendant Good Samaritan Hospital Medical Center's motion for summary judgment is denied.
The foregoing constitutes the Order of this Court.