KOZIK v. SHERLAND FARRINGTON INC (2019)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Sherland & Farrington, Inc., appeals from an order of the Supreme Court, Nassau County (Jerome C. Murphy, J.), dated August 30, 2017.  The order denied that defendant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

On April 5, 2010, the plaintiff allegedly was injured while walking along a corridor at her workplace, in Port Washington.  According to the plaintiff, her right foot became caught on a “wavy” portion of the corridor's floor.  Although the plaintiff did not fall, she twisted her right leg and allegedly sustained injuries.  In March 2013, the plaintiff commenced this action against, among others, Sherland & Farrington, Inc. (hereinafter the defendant), alleging, inter alia, that the defendant negligently installed and/or maintained the floor on which she was walking at the time of the occurrence.

After discovery, the defendant moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, arguing, inter alia, that the alleged defect was trivial as a matter of law and, therefore, not actionable, and that the plaintiff did not know what caused her to fall.  The Supreme Court denied the defendant's motion, and the defendant appeals.

“Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.  However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” (Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863–864, 5 N.Y.S.3d 302;  see Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594).  “[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation” (Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 827, 995 N.Y.S.2d 747;  see Mitgang v. PJ Venture HG, LLC, 126 A.D.3d at 864, 5 N.Y.S.3d 302;  Ash v. City of New York, 109 A.D.3d at 855, 972 N.Y.S.2d 594).

Here, the defendant failed to establish, prima facie, that the plaintiff did not know what caused her accident (see Davis v. Sutton, 136 A.D.3d 731, 732, 26 N.Y.S.3d 100).  The plaintiff's deposition testimony, the transcript of which the defendant submitted in support of its motion, demonstrated the existence of a triable issue of fact as to whether she caught her foot and was injured as a result of a wavy condition on the floor.

In determining whether a defect is trivial, courts “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 the City of N.Y., 152 A.D.3d 654, 655, 58 N.Y.S.3d 579 [internal quotation marks omitted];  see Trincere v. County of Suffolk, 90 N.Y.2d 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489).  “[T]here is no ‘minimal dimension test’ or per se rule that a defect must be ․ a certain minimum height or depth in order to be actionable” (Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489).  However, a defendant “may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection” (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 78, 19 N.Y.S.3d 802, 41 N.E.3d 766 [internal quotation marks omitted];  see Liebl v. Metropolitan Jockey Club, 10 A.D.2d 1006, 1006, 204 N.Y.S.2d 670).  A defendant seeking to dismiss a complaint on the basis of the trivial defect doctrine must make a prima facie showing that (1) “the defect is, under the circumstances, physically insignificant,” and (2) “that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 79, 19 N.Y.S.3d 802, 41 N.E.3d 766).

Here, the evidence submitted by the defendant in support of its motion failed to establish, prima facie, that the alleged wavy condition of the floor on which the plaintiff caught her foot was trivial as a matter of law (see Green v. Price Chopper, Inc., 164 A.D.3d 478, 479, 82 N.Y.S.3d 500;  Lomele v. Chawla, 161 A.D.3d 1144, 1145, 78 N.Y.S.3d 436;  Sturm v. Myrtle Catalpa, LLC, 149 A.D.3d 1130, 1131, 53 N.Y.S.3d 356).

Accordingly, we agree with the Supreme Court's determination denying the defendant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, regardless of the sufficiency of the plaintiff's opposition papers (see Lomele v. Chawla, 161 A.D.3d at 1145, 78 N.Y.S.3d 436;  Sturm v. Myrtle Catalpa, LLC, 149 A.D.3d at 1132, 53 N.Y.S.3d 356).

DILLON, J.P., LEVENTHAL, HINDS–RADIX and DUFFY, JJ., concur.