The following papers have been read on this motion: Notice of Motion, Affirmation in Support, Exhibits 1 Affirmation in Opposition, Expert Affidavit, Exhibits 2 Affirmation in Reply, Exhibits 3 Defendant Mercy Medical Center (hereinafter “Mercy”) moves for an Order granting summary judgment pursuant to CPLR §3212 in favor of defendant and dismissing the complaint in its entirety. This motion is decided as hereinafter provided. Factual and Procedural Background This is an action for personal injuries allegedly sustained by plaintiff, Patricia Smith, who contends that she slipped and fell on Sunday, April 16, 2017, due to an unknown clear wet substance on the floor of a second floor hallway of Mercy Medical Center located at 1000 North Village Avenue, Rockville Center, New York 11570 (hereinafter “the building”). Mercy was the owner of the building and was responsible for management, operation, maintenance, cleaning, inspection, and control of the building. This action was commenced on October 3, 2018 by the filing of a summons and complaint. In support of the motion, defendant submits its attorney’s affirmation, the pleadings, the transcripts of the depositions of plaintiff and Philip Polo, the Assistant Director of Facilities Management for defendant. In opposition, plaintiff submits her attorney’s affirmation, and an expert affidavit of engineer Stanley Fein. Defendant argues that it is entitled to summary judgment because it did not create the alleged wet condition, and did not have actual or constructive notice of any wet condition. In opposition, plaintiff argues that the motion should be denied on the grounds that the deposition transcript of defendant’s own witness that is relied upon is not signed. Plaintiff also argues that even if the Court considers the deposition testimony, defendant has nevertheless not made out its prima facie case for summary judgment. Finally, plaintiff argues that issues of fact exist warranting denial of the motion. Plaintiff testified as follows at her deposition. The accident occurred on April 16, 2017 between 8:30 am 9:30 am when plaintiff was visiting her mother who was a patient at the hospital. Plaintiff was accompanied by her brother, who is now deceased. As she walked through the hallway to her mother’s hospital room, her brother went ahead of her and wasn’t with her. The hallway was dimly lit. Plaintiff states that she was walking normally and slipped and fell on the floor. She did not see any substance on the floor while she was walking before the accident, but her pants became entirely soaked with a clear liquid, leading plaintiff to believe she slipped on a wet substance. No one witnessed the accident. Plaintiff testified that her brother had walked through the area without issue. After falling, she lay on the floor unable to move for ten minutes during which time she saw no hospital staff walk by. Plaintiff asserts she then dragged herself over to the wall and got up before proceeding to visit her mother. She stated that while in her mother’s room, a nurse asked her what happened, but refused to help her. Plaintiff was unable to recall any identifying information regarding the nurse. Plaintiff did not notice or report the substance prior to her accident, nor did she ask anyone to clean up the substance following her accident because she was in a daze. Philip Polo was deposed on behalf of defendant and testified as follows. He had been employed by Mercy for over seven years. His current position is Director of Facilities Management. At the time of the alleged incident, he was Assistant Director of Facilities and Construction, and his duties included general maintenance of the building, overseeing all new construction projects, and day-to-day operations regarding facilities management. Cleaning or polishing floors was not a part of Mr. Polo’s department but rather would be the responsibility of housekeeping or environmental services. Mr. Polo’s department does not supervise housekeeping or environmental services, nor does Mr. Polo have knowledge of their cleaning protocols. He does not have access to work orders submitted directly to these departments. Mr. Polo testified that he and/or his staff of about eighteen employees, performed walk-throughs of the building every morning at 7:00 am to look for anything out of the ordinary such as leaks, lighting issues, or heating and electrical problems. These walk-throughs are conducted Monday through Friday. However, Mr. Polo could not definitively answer whether walk-throughs were conducted on Saturday and Sunday. Mr. Polo further testified that he was unaware of plaintiff’s alleged accident and did not know of anyone having witnessed it. He could not recall if additional walk-throughs took place on the day of the alleged accident nor were records produced to show which personnel completed the walk-through. He did not search for any records related to a possible incident from April 16, 2017. Plaintiff argues that the Court should disregard the testimony of Philip Polo, because it is unsigned and there is no showing by defendant that the transcript was ever sent to the witness for execution, in accordance with CPLR §3116. In reply, counsel for defendant states that the omission of the signature page was due to a clerical error and was a mere oversight. With its reply papers, defendant submits Mr. Polo’s executed signature page which shows that he signed it on January 5, 2021. No changes or corrections to the testimony are made. The Court finds defendant’s failure to include the signature page a mere oversight and that plaintiff was not prejudiced thereby. The Court will, therefore, consider the testimony. Plaintiff submits an affidavit from Stanley H. Fein, P.E., a professional engineer, sworn to March 25, 2021. Mr. Fein inspected the hospital’s second level floor on October 12, 2018 for the purpose of determining whether the vinyl tile flooring and any wetness on it may have contributed to the accident. Defendant argues that the Court should disregard the expert affidavit submitted by plaintiff in opposition to the motion for summary judgment because plaintiff failed to previously disclose the expert despite defendant’s demands for such disclosure pursuant to CPLR §3101[d], and plaintiff’s failure to provide an excuse for his failure to disclose the expert prior to the filing of the Note of Issue. Defendant served plaintiff with Combined Demands including a Demand for Expert Disclosure. On December 20, 2018, plaintiff served the defendant with a Response to the Combined Demands, including a response to the Demand for Expert Disclosure. The response stated that “other than Plaintiff’s treating physicians, Plaintiff has not yet retained the services of an Expert for the purposes of testifying at trial.” The Note of Issue was filed on November 3, 2020. Defendant states that as of said date, plaintiff had failed to serve a response to defendant’s demand for expert disclosure pursuant to CPLR §3101[d]. CPLR 3212[b], as amended in 2015, states in pertinent part: Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. The cases cited by defendant in support of its argument predate the 2015 revision to CPLR §3212[b], cited above, which expressly authorizes the Court to consider the expert’s affidavit. As such, this Court will consider Mr. Fein’s affidavit in opposition to plaintiff’s motion for summary judgment. It is well established that a proponent of a summary judgment motion must make a prima facie case of entitlement to judgment as a matter of law when there are no material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists. (Id. at 325; Andre v. Pomeroy, 35 NY2d 361 [1974]). Summary judgment is the procedural equivalent of a trial (Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 AD2d 572 [2d Dept 1989]). Thus, the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc., 182 AD2d 446 [1st Dept 1992]). The Court’s role is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Gervasio v. Di Napoli, 134 AD2d 235, 236 [2d Dept 1987]; Assing v. United Rubber Supply Co., 126 AD2d 590 [2d Dept 1987]). In deciding a summary judgment motion the Court must draw all reasonable inferences in favor of the nonmoving party (Nicklas v. Tedlen Realty Corp., 305 AD2d 385 [2d Dept 2003]), and the evidence must be construed in a light most favorable to the party opposing the motion (Benincasa v. Garrubbo, 141 AD2d 618 [2d Dept 1988)]). “[E]ven the color of a triable issue forecloses the remedy”. (Rudnitsky v. Rabbins, 191 AD2d 488, 489 [2d Dept 1993]. Furthermore, the credibility of the parties is not an appropriate consideration for the Court. (See S.J. Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 NY2d 338 [1974]). “A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.” (Birnbaum v. New York Racing Ass’n, Inc., 57 AD3d 598, 598 [2d Dept 2008]). Plaintiff testified that the hallway was dimly lit, no wet floor signs were in the area, and that she slipped and fell on what she assumes must be a clear liquid substance because her pants were soaked through following the alleged fall. Although Mr. Polo testified that he conducted a walk-through of the facility each weekday at 7:00 am, Mr. Polo did not establish a specific protocol for these walk-throughs, nor did he produce any records of when and by whom these walk-throughs were completed. Mr. Polo also testified that he conducted the walk-throughs Monday through Friday. However, he did not know, and could not conclusively establish that a walk through occurred the morning of plaintiff’s accident, which was a Sunday. “To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” (Gordon v. Am. Museum of Nat. History, 67 NY2d 836, 837 [1986]). Mercy argues that no actual or constructive notice of any wet condition existed as the substance was not visible or apparent to plaintiff immediately preceding the accident and her brother walked through the same area shortly before plaintiff and did not encounter a wet substance. Thus, Mercy contends that this condition was not readily observable and may have existed only immediately prior to plaintiff’s fall. Consequently, Mercy asserts that there is no evidence that they knew or should have known there were slippery conditions in the hallway. However, questions of fact remain whether a liquid substance existed, how any such liquid substance was created and how long the wet conditions existed before the accident. To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell. (Birnbaum v. New York Racing Ass’n, Inc., 57 AD3d 598, 598-99 [2d Dept 2008]). “Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice.” (Johnson v. 101-105 S. Eighth St. Apartments Hous. Dev. Fund Corp., 185 AD3d 671 [2d Dept 2020], citing Herman v. Lifeplex, LLC, 106 AD3d 1050, 1051 [2d Dept 2013]). Here, Mercy failed to meet this burden because Mr. Polo’s testimony offered no conclusive evidence of the specific cleaning and/or inspection protocols that took place around the time of the alleged accident. As such, this Court holds that defendant offers no admissible proof of when this area was last cleaned or inspected on the morning of Sunday, April 16, 2017, the time of the alleged accident. As to the truthfulness and accuracy of testimony, whether contradicted or not, credibility of witnesses, and the significance of weaknesses and discrepancies are all issues for the trier of fact. (Pedone v. B&B Equipment Co., Inc., 239 AD2d 397 [2d Dept 1997]). The Court, having carefully reviewed and considered the evidence submitted, drawing all reasonable inferences in favor of the nonmoving party and construing the evidence in a light most favorable to the nonmoving party, as it must, finds that triable issues of fact exist precluding summary judgment in favor of defendant Mercy. Accordingly, defendant Mercy Medical Center’s motion for summary judgment dismissing the complaint is DENIED. This constitutes the Decision and Order of the Court. Dated: August 10, 2021
