The following papers were read on this motion: Defendants’ Notice of Motion for Summary Judgment and Supporting Papers [003] 1 Defendants’ Notice of Motion to Preclude or Disqualify and Supporting Papers [004] 2 Plaintiff’s Affirmation in Opposition and Supporting Papers [003] 3 Plaintiff’s Affirmation in Opposition and Supporting Papers [004] 4 Defendants’ Affirmation in Reply [003] 5 Defendants’ Affirmation in Reply [004] 6 Upon the foregoing e-filed documents, and after conducting oral argument In-Person with both parties’ counsel, on September 7, 2022, the motion of defendants, Inn at Great Neck [a/k/a Great Neck Inn] and Sussex Great Neck [hereinafter, "defendants" or "Great Neck Inn"] for an Order pursuant to CPLR §3212, granting summary judgment dismissal of the plaintiff’s Complaint [Seq. No. 003] and defendants’ motion for an Order pursuant to CPLR §3103(c) precluding evidence, or, alternatively, pursuant to 22 NYCRR §1200.00, Rule 3.7(a), disqualifying counsel [Seq. No. 004], are determined as provided herein: This premises liability action arises from an incident alleged to have occurred on September 14, 2018, when the plaintiff allegedly tripped and fell at the hotel referred to hereinafter as Great Neck Inn, which is located at 30 Cuttermill Road, in Great Neck, Nassau County, New York. The plaintiff commenced this action by filing a Summons and Verified Complaint on February 4, 2019. Issue was joined by the defendants serving their Answer dated April 22, 2019. Plaintiff testified that on the date of her accident, she was attending a work event hosted by Planned Parenthood at the Great Neck Inn. The plaintiff further testified that she had never been to the Great Neck Inn before her work event on September 14, 2018, that she did not notice any dangerous condition until after her accident, and that she was not aware of anyone reporting any dangerous condition to the hotel. She further testified as follows: “there was a piece of broken floor on the saddle at the entrance of the room. That is where I stepped on it, and that’s how I fell”. She testified that the first time she saw the piece of the broken floor was minutes after her fall had occurred. The proponent of a summary judgment motion must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (See, Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Orellana v. Mendez, 208 AD3d 888, 888 [2d Dept. 2022]). “This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.” (Cach, LLC v. Khan, 188 AD3d 1135, 1136 [2d Dept. 2020]). “Where the moving party fails to meet this burden, summary judgment cannot be granted, and the non-moving party bears no burden to otherwise persuade the court against summary judgment.” (Cach, LLC, 188 AD3d at 1136). However, once the movant has made the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Alvarez, 68 NY2d at 324). The opponent’s mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a summary judgment motion. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). A defendant who moves for summary judgment dismissal in a trip-and-fall such as this one must establish, prima facie, “that it neither [1] affirmatively created the hazardous condition nor [2] had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence”. (Loper v. Stop & Shop Supermarket Co., LLC, 206 AD3d 641, 641-642 [2d Dept 2022] [citations omitted]). The Court’s function on the defendants’ summary judgment motion is “not to resolve issues of fact or to determine matters of credibility, but merely to determine whether such issues exist”. (Green v. Quincy Amusements, Inc., 108 AD3d 591, 592 [2d Dept 2013] [citations omitted]). The defendants support their Summary Judgment Motion with the deposition testimony of Corinne Sodano, who is a Great Neck Inn employee, as well as the plaintiff’s deposition testimony and that of non-party Emily Briglia, the plaintiff’s former manager when the plaintiff was employed by Planned Parenthood. The defendants established, prima facie, that they did not create the alleged dangerous condition, and they did not have actual notice of the alleged dangerous condition. “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”. (Petersel, 99 AD3d at 880). “Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question”. (Quinones v. Starret City, Inc., 163 AD3d 1020, 1021 [2d Dept 2018]). In this case, Ms. Sodano testified in general terms that inspecting the area where the plaintiff’s alleged accident occurred is the responsibility of all management and the maintenance department and the food and beverage manager. She further testified that she had not “ever seen” anything before the plaintiff’s accident that she would have reported. She further testified that, prior to the plaintiff’s accident, she did not see anything wrong with the subject saddle that the plaintiff alleges is the hazardous condition. However, the defendants failed to submit any deposition testimony or other evidence establishing specifically when the area of the plaintiff’s alleged accident was last inspected prior to the plaintiff’s accident. Accordingly, the defendants failed to satisfy their prima facie burden concerning whether they had constructive notice of the hazardous condition. (Petersel v. Good Samaritan Hosp. of Suffern, 99 AD3d 880, 880 [2d Dept 2012]). Additionally, Ms. Sodano and the plaintiff offer materially conflicting versions of the events surrounding the plaintiff’s fall. Specifically, Ms. Sodano testified that she observed the plaintiff fall once the plaintiff had already entered into the Empire Room [the "event room"] and was three or four feet away from the doorway inside the event room. In contrast, the plaintiff testified that she tripped over the saddle while walking into the Empire Room, and that minutes after her fall she observed that the door saddle was broken and that the broken saddle is what caused her to trip and fall. Ms. Sodano testified that the plaintiff told her that she has bad knees and that her knees gave out. The plaintiff denied telling anyone that she has bad knees. She testified that she said that she hurt her knee and that her knee “is bad right now”. In light of the conflicting testimonial evidence concerning the plaintiff’s fall, the defendants failed to sustain their burden of demonstrating the absence of any material issue of facts in this matter. (See Roofeh v. 141 Great Neck Rd. Condominium, 85 AD3d 893, 894 [2d Dept 2011]). In light of the foregoing, the defendants’ Summary Judgment Motion is DENIED. The defendants also move to preclude evidence that they contend the plaintiff obtained from an unauthorized and improper pre-litigation inspection and/or was converted from the defendants’ premises. Defense counsel contends that on September 17, 2018, three days after the plaintiff’s alleged accident, the plaintiff and her attorney went to the subject premises unannounced and, after having lunch at the restaurant at the subject premises, performed an unauthorized and improper pre-litigation inspection of the subject location. Defense counsel further contends that at that time, the plaintiff’s counsel not only conducted an unauthorized inspection of the defendants’ private premises, but he also took photographs of the alleged defective condition and physically removed and kept a piece of the floor where the plaintiff’s accident allegedly occurred without the defendants’ knowledge or consent. Defense counsel further contends that plaintiff’s responses to the defendants’ discovery demands falsely indicated that the plaintiff’s counsel was not in possession of any photos which depict or purport to depict the subject accident scene, and did not disclose any such photos until January 12, 2021, one day prior to the plaintiff’s deposition, when the plaintiff’s counsel emailed several photos that were not accompanied by any discovery response or information to identify who took the photos, when they were taken, where they were taken, or what they are alleged to depict. Defense counsel asserts that the defendants will be prejudiced if these photos were introduced into evidence either in Opposition to Defendants’ Motion for Summary Judgment, or at trial, since the defendants received no discovery accompanying these photos prior to the filing of the Note of Issue. Defense counsel further contends that if the photos and piece of saddle are not precluded from use and/or are not precluded from introduction, then the plaintiff’s counsel should be disqualified as a necessary witness to critical discovery information concerning these materials. Plaintiff’s counsel opposes the defendants’ Motion to Preclude and argues that the defendants have failed to articulate a single basis as to why the photographs of the location of the incident and the piece of the door saddle should be precluded. Plaintiff’s counsel further contends that the defendants were fully apprised of the photographs and the piece of the door saddle on January 13, 2021, at the plaintiff’s examination before trial ["EBT"], and the photographs were exchanged with the defendants on January 12, 2021, the day before the plaintiff’s EBT. Under CPLR §3103(c), entitled “Suppression of information improperly obtained”, “[i]f any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed”. (CPLR §3103[c]). In this case, while the plaintiff and her attorney’s unannounced visit to the location of her accident might have constituted a permissible informal pre-action inspection, the Court will not condone the plaintiff’s counsel’s removal of a piece of the subject saddle without first alerting defendants that he was doing so, which itself potentially created a further hazard to individuals who might walk in that area. Furthermore, based on the deposition testimony submitted by defense counsel in support of the Motion to Preclude, the plaintiff does not have nearly sufficient first-hand knowledge to properly authenticate the subject photographs or to establish the chain of custody with respect to the piece of the door saddle. It appears from the parties’ respective motion papers that plaintiff’s counsel, who admits to taking the subject photographs, would be the only individual who could properly authenticate the photographs and establish the chain of custody with respect to the saddle. The defendants established that they will be substantially prejudiced without such information and that plaintiff’s counsel’s testimony would not be irrelevant and repetitive of the plaintiff’s anticipated testimony, as the plaintiff was unable to testify concerning several critical aspects of the photographs and the door saddle. (Lantigua v. Goldstein, 149 AD3d 1057, 1059 [2d Dept 2017]). The proper authentication of these discovery materials is critical, as the defendants have presented a different version of events surrounding the plaintiff’s fall, wherein there was no defect with the saddle and the plaintiff’s accident occurred several feet after she had already passed over the subject door saddle. Additionally, the defendants further established that if the plaintiff’s attorney were to testify as a witness in this case, then disqualification is necessary. Furthermore, plaintiff’s counsel fails to refute defense counsel’s representation that the parties appeared for a pre-motion conference with the Justice who previously presided over this matter, and that defense counsel was authorized by the Court to file both its motion for summary judgment and its motion to preclude. Accordingly, as the plaintiff’s counsel has given no indication that he will appear to testify about the subject photographs and the door saddle, and/or that he intends to move to withdraw as the plaintiff’s counsel, the defendant’s Motion to Preclude is GRANTED, and the plaintiff is precluded from using in this action the previously mentioned photographs and the piece of saddle that was removed from the defendants’ premises. Accordingly, it is hereby, ORDERED, that the motion of the defendants, Inn at Great Neck and Sussex Great Neck, for an Order pursuant to CPLR §3212 for summary judgment dismissing the plaintiff’s Complaint [Seq. No. 003], is DENIED; and it is further, ORDERED, motion of the defendants, Inn at Great Neck and Sussex Great Neck, for an Order precluding the photographs taken and the evidentiary materials obtained from the plaintiff and her counsel’s visit to the subject premises on September 17, 2018, is GRANTED, to the extent that the plaintiff is hereby precluded from offering into evidence and relying upon same [Seq. No. 004]; and it is further, ORDERED, that all other requests for relief not specifically addressed herein are deemed DENIED. This constitutes the decision and Order of this Court. Dated: October 17, 2022
