Opinion
Index No. 605883/2018 Motion Seq. No. 2
02-03-2022
SHARON MASTROMAURO, Plaintiff, v. MERCY MEDICAL CENTER and CATHOLIC HEALTH SYSTEM OF LONG ISLAND, INC., Defendants.
Unpublished Opinion
Submission Date: 3/30/21
Present: HON. ROBERT A. MCDONALD JUSTICE
Robert A. McDonald Judge:
The following papers have been read on this motion: NYSCEF Doc. No.
Notice of Motion..................................................................... 48
Affirmation in Support................. 50
Supporting Exhibits................................................. 51-63
Affirmation in Opposition and Exhibits...................... 69-72
Reply Affirmation........75
This motion by the defendants Mercy Medical Center and Catholic Health System of Long Island. Inc. for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is determined as provided herein.
The plaintiff in this action seeks to recover damages for personal injuries she sustained on February 15, 2018 when she tripped and fell in the hallway at the defendant Mercy Medical Center ("the Hospital"). She alleges in her complaint that the defendants were negligent in their ownership, operation and maintenance of the hallway where she fell; that the defendants failed to take all necessary steps to prevent her accident; and, that the defendants had actual and/or constructive notice of the defective condition that caused her fall. More specifically, she alleges in her complaint that the defendants were negligent in "carelessly causing or allowing and permitting [a] rug, carpet and/or mat" in the hallway and that "the rug, carpet and/or mat .. .had an inadequate, defective, slippery, unsafe, and dangerously improper surface with variations in elevation, was hazardous, and otherwise had a poorly and negligently placed and/or maintained surface which was dangerous and in trap-like conditions." The defendants seek summary judgment dismissing the complaint against them.
The facts relevant to the determination of this motion are as follows:
At her examination before trial, the plaintiff testified that she was at the Hospital on the day in question because her husband was being evaluated at the Emergency Room. At some point, her husband was being brought on a stretcher by a male orderly to the Radiology Department for some tests. She followed about ten to fifteen feet behind them. She testified that she was carrying her pocketbook, a bag of food, coffee and her husband's cane which required her to use both of her hands. She testified that she was taking her time and twice testified that she wasn't really paying attention to her surroundings because she was concerned about her husband. At one point, she observed the orderly struggling while pushing the stretcher over the mat but stated that she did not know why he was having difficulty. Following this, she suddenly fell. She described her accident as follows: "I started to cross over where there was a mat on the floor, a rug, it was black. I had just gone over it and down I went." The plaintiff testified that she did not feel her feet come into contact with anything including the mat before she fell. Again, she stated that she suddenly went down on all fours.
The plaintiff further testified that she did not see the mat before she fell and that she observed it for the first time after she fell. She testified "when I went down I tried to get myself up. I turned over and when I turned over I looked down and I saw that the carpet or the rug was...buckled." Again, she testified that she did not feel her feet come into contact with anything before she fell and that she did not know whether the mat was buckled before she fell. The plaintiff also testified that she had been in the hallway where she fell before and never noticed any mats, Gerald Lockwood, the Director of Environmental Services at the Hospital testified at his examination before trial that his Department was responsible for placing all of the mats at the Hospital. He testified that the mat the plaintiff fell on is always in place and is secured by duct tape. The duct tape is replaced whenever the mat and the floor are cleaned. Lockwood testified that the hallway where the plaintiff fell is well lit at all times and that there were no reports of accidents in this area prior to the plaintiff s fall. Security Guard Carlos Mercado testified at his examination-before-trial that he prepared the Incident Report the day after the plaintiff s accident and she told him that she had "tripped over [a] mat"
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). A party seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). A failure to make that showing requires the denial of that summary judgment motion, regardless of tire adequacy of tire opposing papers (Ayotte v Gervasio, 81 N.Y.2d 923 [1993]). If the movant makes a prima facie showing, the burden shifts to the Opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 N.Y.2d at 324). ''[T]o defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact'" (Friends of Animals v Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067-1068 [1979], quoting CPLR 3212, subd. [b]). "On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party" (Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339 [2011]). A motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010] [internal quotation marks omitted]; see, Benetatos v Comerford, 78 A.D.3d 750, 751-752 [2d Dept 2010]).
"Under the common law, a property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition" (Mermelstein v Campbell Fitness NC, LLC, __ A.D.3d__, 2022 WL 221145 at *1 [2d Dept 2022], citing Kellman v 45 Tiemann Assoc., Inc., 87 N.Y.2d 871, 872 [1995]; Basso v Miller, 40 N.Y.2d 233 [1976]; Mowla v Baozhu Wu, 195 A.D.3d 706 [2d Dept 2021])." 'A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiffs presence on the property'" (Mermelstein v Campbell Fitness NC, LLC, 2022. WL 221145 at * 1, quoting Groom v Village of Sea Cliff, 50 A.D.3d 1094, 1094 [2d Dept 2008] [internal quotation marks omitted], citing Mowla v Baozhu Wu. 195 A.D.3d at 706). "In moving for summary judgment, a defendant has the burden of establishing, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of it" (Mermelstein v Campbell Fitness NC, LLC, 2022 WL 221145 at * 1, citing Mowla v Baozhu Wu, 195 A.D.3d at 706; Fields v New York City Hous. Auth., 186 A.D.3d 1330, 1330-1331 [2d Dept 2020]; Gairy v 3900 Harper Ave., LLC, 146 A.D.3d 938, 938 [2d Dept 2017]; Monastiriotis v Monastiriotis, 141 A.D.3d 510, 511 [2d Dept 2016"]).
"A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent, and has existed for a sufficierit length of time to afford the defendant a reasonable: opportunity to discover and remedy it" (Mermelstein v Campbell Fitness NC, LLC, 2022 WL 221145 at * 1, citing Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837-838 [1986]; Mowla v. Baozhu Wu, 195 A.D.3d at 706; Vargas v. Lamberti, 186 A.D.3d 1572, 1573 [2d Dept 2020]). "To meet its initial burden on the issue of lack of constructive notice of an alleged defective condition, a defendant must offer some evidence as to when the subject area was last inspected relative to the time when the incident occurred" (Mermelstein v Campbell Fitness NC, LLC. 2022 WL 221145 at * 1, citing Fortune v Western Beef, Inc., 178 A.D.3d 671 [2d Dept 2019]; Radosta v Schechter, 171 A.D.3d 1112, 1113 [2d Dept 2018]).
The defendants' motion for summary judgment dismissing the complaint based on a lack of notice of the allegedly dangerous condition that caused the plaintiff to fall is denied. Lockwood's testimony which the defendants rely on does not establish when the hallway was last inspected and therefore, the defendants have not established that they did not have at a minimum constructive notice of the mat (Mermelstein v Campbell Fitness NC, LLC, 2022 WL 221145 at, citing Fortune v Western Beef, Inc., 178 A.D.3d at 671; Radosta v Schechter, 171 A.D.3d at 1113; see also, Skerrett v LIC Site B2 Owner, LLC, 199 A.D.3d 956 [2d Dept 2021]; Buckshaw v Oliver, 197 A.D.3d 691 [2d Dept 2021]).
Nevertheless, "' [i]n a trip-and-fall case; a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall' without resorting to speculation" (Zhan v City of New York, 199 A.D.3d 1045, 1046 [2d Dept 2021], quoting Razza v LP Petroleum Corp,, 153 A.D.3d 740, 741 [2d Dept 2017]).
Here, the defendants have made a prima facie showing of its entitlement to summary judgment by demonstrating that the plaintiff cannot identify the cause of her fall without resorting to speculation (Theissen v 7-Eleven, Inc., 189 A.D.3d 1502, 1504 [2d Dept 2020], citing Goldberg v Village of Mt. Kisco, 125 A.D.3d 929, 930 [2d Dept 2015]; Deputron v A &J Tours, Inc., 106 A.D.3d 944-945 [2d Dept 2013]). Considered in its entirety, the plaintiff's testimony establishes that she did not know what caused her to fall until after she fell. More significantly, she testified that she never saw tire mat until after she fell; that she did not know if it was buckled before she fell; and, most importantly, that she did not feel her feet make contact with anything before she fell. (Theissen v 7-Eleven, Inc., 189 A.D.3d at 1504). In fact, she consistently testified that she saw it for the first time after she fell. Under these circumstances," 'it is just as likely that the accident [was] caused by some ... factor [other than the mat... ], such as a loss of balance' or control'" (Zhan v City of New York, 199 A.D.3d at 1046, quoting Teplitskaya v 3096 Owners Corp., 289 A.D.2d 477, 478 [2d Dept 2013]). Accordingly, a finding that the defendants' negligence was responsible for the accident would be impermissibly based on speculation (Zhan v City of New York, 199 A.D.3d at 1046, citing Ash v City of New York, 109 A.D.3d 854, 855 [2d Dept 2013]; see also, Phillips v LSS Leasing Ltd. Liab. Co., 176 A.D.3d 750, 751 [2d Dept 2019]; compare, Torres v Bd. of Educ. of City of New York, 175 A.D.3d 1584, 1586 [2d Dept 2019] "[the plaintiff testified ...that "I felt [the test board] flying right under my feet," and that "I felt... a board underneath me" as he slipped"]; Padilla v CVS Pharm., 175 A.D.3d 584, 585-86 [2d Dept 2019] ["the plaintiff testified that he ;recognize[d] it' as the location of his fall" when shown a photograph of the crack in the sidewalk and that "as he was walking and 'looking at the door,' he felt the front of his left foot make contact with the 'break' in the walkway"]).
In opposition, the plaintiff has submitted an affidavit which differs significantly from her testimony, Faced with the defendants' motion,, she now attests that she did see the mat before she fell; that she observed the stretcher's wheel get stuck on the mat; and, that she tripped over the mat. These self-serving attestations are in stark contrast to the plaintiff s diametrically opposed testimony at her examination before trial and accordingly, establish only a feigned issue of fact in an attempt to avoid the consequences of her previous testimony (Fonck v City of New York, 198 A.D.3d 874 [2d Dept 2021], citing Doran v JP Walsh Realty Group, LLC, 189 A.D.3d 1363, 1364-1365 [2d Dept 2020]; Maldonado v New York City Hous. Auth., 145 A.D.3d 679, 680 [2d Dept 2016]; see also, Ventura v County of Nassau, 175 A.D.3d at 620). The plaintiff s present position that she knew at her deposition that the mat caused tier to fall but was never specifically asked is rejected because again, she testified that she did not see it before she fell and she never even felt her feet come into contact with anything, thereby rendering her conclusion after she fell that the mat caused her to fall to be surmise, especially since by her own testimony, she was walking with her hands full and not paying attention to her surroundings.
Reeves v 1700 First Ave., LLC (142 A.D.3d 830, 831 [1st Dept 2016]) is directly on point In that case, the plaintiff testified at his examination-before-trial that he never saw the carpet that allegedly caused him to fall before he fell; that he did not recall whether any part of his foot made contact with the carpet before he fell; that he did not feel any defect in the carpet before he fell; that the first time he saw a portion of the carpet raised was when the door man helped him after he fell; and, that he was unsure of what caused him to fall. In Reeves, the court held that the plaintiffs post-accident observations of the carpet were mere speculation and failed to create a triable issue of fact as to whether a dangerous condition existed before his fall (Reeves v 1700 First Ave., LLC, 142 A.D.3d at 831; citing Vazquez v Genovese Drug Stores, Inc., 88 A.D.3d 467 [1st Dept 2011] ["Plaintiff husband's affidavit as to the condition of the rug and its placement was insufficient to [establish an issue of fact], inasmuch as his observations at the accident scene were made only after the accident occurred]; Goldfischer v Great Atl. & Pac. Tea Co., Inc,, 63 A.D.3d 575 [1st Dept 2009] [Plaintiff "merely surmised that [her fall] was caused by the bump in the rubber floor mat that she observed for the first time after she fell] Drago v DeLuccio, 79 A.D.3d 966 [2d Dept 2010] ["The plaintiff admitted at her deposition that she did not notice the mat at any time prior to the fall on the day of the occurrence, and that it was only after she fell that she observed the mat in a 'rolled up' condition. It is just as likely under these facts that the 'tolled up' condition of the mat was caused when the plaintiff tripped and was not a preexisting condition"]).
The plaintiff also opposes the defendants' application as premature based upon outstanding discovery. More specifically, she seeks the maintenance records for the subject hallway and the identity of the individual who was transporting her husband
Tire plaintiff filed the Note of Issue on February 28, 2020 in which her attorney affirmatively represented, that discovery was complete rendering her present representations to the contrary disingenuous. In cases like this, the law is well-settled that a claim of incomplete discovery will not defeat a prima facie showing of entitlement to summary judgment (Matuszak v B.R.K. Brands, Inc., 23 A.D.3d 628 [2d Dept 2005], citing Guarino v Mohawk Containers Co., 59 N.Y.2d 753 [1983]; Kraeling v Leading Edge Elec., 2 A.D.3d 789 [2d Dept 2003]; Federojf v Camperlengo, 215 A.D.2d 806 [3rd Dept 1995]; Kracker v Spartan Chem. Co., 183 A.D.2d 810 [2d Dept 1992]; Dabbs v City of Peekskill, 178 A.D.2d 577 [2d Dept 1991]; Hecht v Vanderbilt Assoc., 141 A.D.2d 696 [2d Dept 1988], app dismissed 73 N.Y.2d 918 [1989]).
Furthermore, as for the identity of the orderly who was transporting the plaintiffs husband at the time of her accident, the parties stipulated that the defendants were unable to identify him or her and that the orderly would not testify at trial without notice to the plaintiff and an opportunity to depose him or her. As for the maintenance records, they appear not to have been sought by the plaintiff and in any event, even if they were, this matter is not being decided based upon a lack of notice to the defendant of the allegedly defective condition that caused the plaintiff s fall. Thus, the maintenance records are irrelevant to the plaintiff s inability to identify the cause of her fall absent surmise.
Accordingly, it is hereby
ORDERED that the motion for summary judgment by the defendants Mercy Medical Center and Catholic Health System is granted and the complaint is hereby dismissed.
This shall constitute the decision and order of the Court.