RIVERA v. ROCHESTER GENERAL HEALTH SYSTEM (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum:  Plaintiff commenced this action seeking to recover damages for injuries that she allegedly sustained when she tripped and fell over a wheelchair scale in a hallway at a nursing home operated by defendant.  She appeals from an order granting defendant's motion for summary judgment and dismissing the complaint.  We agree with plaintiff that Supreme Court erred in granting the motion, and we therefore reverse.

Initially, we reject defendant's assertion that plaintiff's contentions are raised for the first time on appeal and, therefore, not preserved for our review.  Although plaintiff raised her contentions in a memorandum of law that is not included in the record on appeal, the record nonetheless establishes that plaintiff's submissions in the motion court contained those contentions inasmuch as defendant discussed them in its reply papers and the court, in its written decision, noted that plaintiff had raised those contentions in the memorandum of law (cf.  Lyndaker v. Board of Educ. of West Can. Val. Cent. Sch. Dist., 129 A.D.3d 1561, 1564–1565, 12 N.Y.S.3d 430 [4th Dept. 2015] ).  In any event, plaintiff's contention that defendant failed to meet its initial burden on its motion for summary judgment is properly before us inasmuch as it involves a “question of law appearing on the face of the record ․ [that] could not have been avoided by the opposing party if brought to that party's attention in a timely manner” (Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799 [4th Dept. 1994];  see Rew v. County of Niagara, 115 A.D.3d 1316, 1317, 983 N.Y.S.2d 170 [4th Dept. 2014] ).

Moreover, we agree with plaintiff that defendant did not meet its initial burden on its motion.  Here, in its motion, defendant contended that the scale was not dangerous as a matter of law because it was an open and obvious hazard, and thus defendant had no duty to warn of its placement in the hallway.  It is well settled that, although “the issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question ․, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion” (Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001] ).  Nevertheless, we conclude that the court erred in concluding that the scale was an open and obvious hazard as a matter of law under the circumstances presented.  “ ‘Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances ․ A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted’ ․ ‘Some visible hazards, because of their nature or location, are likely to be overlooked ․, and the facts here simply do not warrant concluding as a matter of law that the [wheelchair scale] was so obvious that it would necessarily be noticed by any careful observer, so as to make any warning superfluous’ ” and to support a conclusion that it was not a hazard as a matter of law (Schneider v. Corporate Place, LLC, 149 A.D.3d 1503, 1504, 53 N.Y.S.3d 753 [4th Dept. 2017];  see Breau v. Burdick, 166 A.D.3d 1545, 1548, 87 N.Y.S.3d 786 [4th Dept. 2018];  Hayes v. Texas Roadhouse Holdings, LLC, 100 A.D.3d 1532, 1533–1534, 954 N.Y.S.2d 348 [4th Dept. 2012] ).

Defendant also did not meet its initial burden on the motion by submitting the deposition testimony of one of its employees, who opined that the wheelchair scale was in compliance with the National Fire Prevention Association's Life Safety Code, 2000 Edition (Code).  Even assuming, arguendo, that defendant's employee was qualified to render an opinion concerning defendant's compliance with the Code (cf.  Hokenson v. Sears, Roebuck & Co., 159 A.D.3d 1501, 1502, 72 N.Y.S.3d 697 [4th Dept. 2018];  see generally Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532 [1979] ), we conclude that defendant is not entitled to summary judgment because it is well settled that “compliance with regulations or a building code is not dispositive on the issue of negligence” (Schneider, 149 A.D.3d at 1505, 53 N.Y.S.3d 753;  see Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255 [1995];  Belsinger v. M & M Bowling & Trophy Supplies, Inc., 108 A.D.3d 1041, 1042, 969 N.Y.S.2d 644 [4th Dept. 2013] ).

Consequently, inasmuch as defendant failed to meet its burden on the motion for summary judgment, the court was required to deny the motion without regard to the sufficiency of the opposing papers (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).