DECISION AND ORDER The following papers numbered 67-86 for Index No. 150913/2018, NYSCF, were fully submitted on the 8th day of April, 2023. Defendant RICHMOND UNIVERSITY MEDICAL CENTER moves for summary judgment seeking dismissal of Plaintiff’s complaint and asserting that the condition of the area on which Plaintiff allegedly fell had only a de minimis or trivial imperfection of a type which is not is actionable as a matter of law. The Court hereby DENIES Plaintiff’s motion for summary judgment as there exist material issues of disputed fact as set forth herein. Background On June 17, 2017, Plaintiff was on the campus of Richmond University Medical Center located on Bard Avenue, Staten Island, New York, visiting her son who was an ICU patient. She alleges that her foot got caught on a hole or defect in the linoleum on the second-floor hallway of the ICU unit, causing her to fall. Photographs of the area where Plaintiff reportedly fell show a damaged or cracked area of a linoleum floor that nearly spans across the width of the hallway. (NYSCEF Doc. Nos. 77 and 78). As a result of the fall, Plaintiff reportedly sustained a fracture to her left hip, and injuries to her forehead and eye area, including a hemorrhage to the left eye blade and a hematoma to the left eye, among other injuries. The complaint alleges damages for negligence based on a dangerous condition or defect. Defendant’s Motion Defendant in its motion alleges that the report of its expert and other undisputed evidence in the record establishes that any crack, dip or uneven surface on the floor where Plaintiff allegedly fell was so trivial or de minimis in nature that it could not constitute a defect or dangerous condition as a matter of law. Specifically, Defendant’s expert, Michael Walsh, P.E., inspected the area where Plaintiff fell on October 14, 2019. He took photographs and measurements of the site of the alleged defect, which he located based on Plaintiff’s deposition testimony. Mr. Walsh opined that the area of the alleged defect or dangerous condition measured .5″ wide and 0.16″ (4mm) deep at its widest at deepest points. Mr. Walsh opined that, within a reasonable degree of engineering certainty, no tripping hazard or code violation existed at the site of the alleged incident. Specifically, Mr. Walsh’s report states, “The maximum depth (0.16″ max) and width (0.5″ max) of the slight recess is minimal in nature and does not in any way pose a tripping hazard.” The report further notes that the site of the alleged incident does not have any holes. Defendant argues that, given the expert’s measurements of the area, and his opinion that the defect did not constitute a tripping hazard, and did not violate any codes or regulations, that the defect is trivial and de minimis in nature such that it cannot as a matter of law constitute a dangerous condition or defect. He further argues that the photographs of the area support this conclusion as well. Defendant also argues that summary judgment is appropriate because Plaintiff cannot identify the cause of her fall. Defendant asserts that Plaintiff merely speculated that the uneven area of the floor caused her fall, when she saw this area while on the ground after her fall. Thus, Defendant argues Plaintiff is unable to prove negligence or proximate cause, citing to Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 810 (2d Dept. 2010), and her claim must be dismissed. Plaintiff’s Opposition Plaintiff opposes this motion stating that there are material issues of disputed fact that preclude summary judgment. The opposition papers point to Plaintiff’s deposition wherein she testified that her “sneakers caught, and I fell. That’s how I fell….” (NYSCEF Doc No. 79, Dep of Mendez at pp. 56-19 to 57-4). She further points to her deposition testimony that that her right foot got caught “in a hole” in the floor, or in a crack in the floor. (NYSCEF Doc No. 79; pp. Mendez: pp 60-9 to 12; 62-10 to 19; 67-3 to 11; 69-10 to 25). Plaintiff responds to Defendant’s argument that the defect was so trivial or de minimis that it could not constitute a dangerous condition as a matter of law, by stating that “[t]here is no ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. (Tineo v. Parkchester South Condominium, 304 A.D.2d 383 (1st Dept. 2003)). Plaintiff also argues that the issue of whether a defect is trivial is a generally a question for the jury, and the ” time, place and circumstance’ of the injury are necessary factors to be considered in making a determination of whether or not a defect is trivial as a matter of law.” (Id.; Argenio v. Metropolitan Transportation Authority, 277 A.D.2d 165 (1st Dept. 2000)).” Plaintiff further relies on Dominguez v. OCG, IV, LLC, 82 A.D.3d 434 (1st Dept. 2011), wherein summary judgment was denied. In that case, the defendant relied on photographs of the step where plaintiff tripped to establish that the defect was trivial. However, the Court denied summary judgment because the photographs showed an irregular and worn surface, which was not inconsistent with plaintiff’s testimony that he fell when his foot became caught in a crack on the step edge. Reply Defendant argues that the cases on which Plaintiff relies are distinguishable. He asserts that unlike Argenio, “it is crystal clear from the photographs that the edges of the alleged defect in the instant matter are smooth.” Defendant further asserts that Argenio tends to support the underlying motion — in that the Court in Argenio indicated that a “gradual, shallow depression is generally regarded as trivial…” (NYSCEF Doc No. 85, p. 3). Defendant argues that the Dominguez case is inapposite, as this matter involved a floor and not a step. Discussion “Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and ‘should only be employed when there is no doubt as to the absence of triable issues of material fact.’” (Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept. 2005], quoting Andre v. Pomeroy, 35 NY3d 361, 364 (1974)). In fact, “even the color of a triable issue forecloses the remedy.” (Rudnitsky v. Robbins, 191 A.D.2d 488, 489 (2d Dept. 1993)). The standards for summary judgment are well settled. The proponent must make a prima facie showing of entitlement to judgment as a matter of law, setting forth sufficient evidence to demonstrate the absence of any material issues of fact. (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980)). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad, supra, 64 NY 2d at 853). Once this showing has been made, however, 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. (Zuckerman, supra, 49 NY2d at 562). Summary judgment should be denied where there is any doubt, at least any significant doubt, whether there is a material, triable issue of fact. (Phillips v. Joseph Kantor & Company, 31 N.Y.2d 307, 311 (1972)). The Court’s function on a summary judgment motion is “to determine whether material factual issues exist, not to resolve such issues.” (Ruiz v. Griffin, 71 AD3d 1112, 1115 (2d Dept. 2010), citing Lopez v. Beltre, 59 AD3d 683, 685 (2d Dept. 2009); see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957); Miele v. American Tobacco Co., 2 AD3d 799, 803 (2d Dept. 2003)(issue finding, not issue determination)). 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.” (Scott v. Long Is. Power Auth., 294 AD2d 348 (2d Dept. 2002); see Baker v. D.J. Stapleton, Inc., 43 AD3d 839 (2d Dept. 2007). Similarly, in considering the motion, the moving papers must be “scrutinized carefully.” (Gesuale v. Campanelli & Assocs., P.C., 126 A.D.3d 936, 937 (2d Dept. 2015); see Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957)). Argenio v. Metro. Transp. Auth., 277 A.D.2d 165, 166, (1st Dept. 2000), provides helpful guidance in regard to this motion: “There is no per se rule with respect to the dimensions of a defect that will give rise to liability on the part of a landowner or other party in control of premises (Herrera v. City of New York, 262 AD 2d 120, citing Trincere v. County of Suffolk, supra[90 N.Y.2d 976 (1997)]), and even a trivial defect may constitute a snare or trap (id., citing Rivera v. 2300 X-tra Wholesalers, 239 AD2d 268). While a gradual, shallow depression is generally regarded as trivial (Santiago v. United Artists Communications, 263 AD2d 407; Figueroa v. Haven Plaza Hous. Dev. Fund, 247 AD 2d 210), the presence of an edge which poses a tripping hazard renders the defect nontrivial (Nin v. Bernard, 257 AD 2d 417, 417-418). Furthermore, factors which make the defect difficult to detect present a situation in which an assessment of the hazard in view of the peculiar facts and circumstances is appropriate (Schechtman v. Lappin, 161 AD2d 118, 121; see also, Trincere v. County of Suffolk, supra, at 977).” The Court finds that Defendant has not met its burden of showing that the defect in this case was trivial or de minimis as a matter of law. There are material issues of disputed fact here that require jury determination. Plaintiff testified that her sneakers caught in a “hole” in the floor causing her to fall. Plaintiff testified that she realized that the hole, which she also described as a “crack” in the floor must have caused her sneaker “to catch” which caused her fall. After she fell to the floor, she observed the area where she fell, saw the defect, and realized what caused her foot to catch. Plaintiff testified that she tripped at the U-shaped portion of the floor defect. Although Defendant in its reply states that it is “crystal clear” that the floor area at issue is smooth, without any sharp edges, the Court does not find that this proposition is established as a matter of fact or law. Defendant’s expert conducted this inspection about two years after the accident. There is some possibility that the edges of the cracked or damaged linoleum, which are subject to hospital foot traffic, may have changed between the time of the accident and his observation. Moreover, the photographs of the floor show that it bears black or darks lines in the light colored linoleum, which could show or be interpreted to show crazing, cracking or breaking of the surface and/or rough edges. The Court finds that the discrepancies between the expert’s recorded observations and descriptions of the floor and Plaintiff’s conflicting observations and descriptions of the floor, and her description of how she fell, as well, raise disputed questions of material fact that require resolution through a trial. The Court notes too that Plaintiff was shown photographs of the area in question taken at the direction of her attorneys at her deposition, and testified that certain of the photographs accurately depicted the area at the time of the fall, while stating that another did not seem to as it seemed dark. (NYSCEF Doc No. 79, pp. 81-19 to 83-3). Further, the two dimensional photographs may not capture complete information as to whether the floor surface itself was smooth or rough. The Court notes that the photographs seem to show a “shiny” floor, indicative of a floor that had been waxed or polished in some way at the time the photos were taken. Applying common sense, such waxing or polishing potentially may make it more difficult to appreciate the quality of the floor surface in photographs. Moreover, while not integral to this decision, the Court also notes that such waxing or polishing potentially may make the floor smoother or less smooth at different times. Regardless of this later point, it does not seem possible to determine from the expert’s report or the photographs whether the edges were smooth or contained a snare or trap-like hole or rough edge at the time of the accident, nor can it be said that the dimensions of the indentions or unevenness of this cracked or crackled area were the same at the time the expert examined it as when Plaintiff fell. Even assuming that the defect had the same dimensions at the time of the alleged fall as the expert Mr. Walsh’s measurements indicate, the Court would not find that it was de minimis as a matter of law. Whether a defect is trivial is generally a question of fact for a jury. (Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997)). An edge that poses a tripping hazard may render a defect nontrivial. (Nin v. Bernard, 257 AD 2d 417, 417-418). “There is no ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable.” (Tineo v. Parkchester South Condominium, 304 A.D.2d 383 (1st Dept. 2003)). Furthermore, the “time, place and circumstance” of the injury are necessary factors to be considered in making a determination of whether or not a defect is trivial as a matter of law. (Id.; Argenio v. Metropolitan Transportation Authority, 277 A.D.2d 165 (1st Dept. 2000)). The Court also considers the surrounding circumstances in making this finding, including that the fall occurred not outdoors but in a hospital corridor leading to an ICU unit. Such a location is one where members of the public, who are likely to be unfamiliar with the hospital, will traverse, while attempting to locate a patient’s room, at times while under some unordinary anxiety or stress. Under these circumstances, it cannot be said that a defect in a linoleum floor that is sufficient to allow a sneaker to “catch” is trivial or de minimis as a matter of law. The Court finds that Plaintiff sufficiently identified where and how she fell. Plaintiff’s testimony confirmed that the area where her sneaker got stuck was at or near the stained or uneven area where she fell as looking like a “U” shape in the photographs. She testified that she did not see the defective condition prior to falling, but that her sneaker caught on something causing her to fall. When she was on the ground, she saw the uneven area right where she fell and realized that her shoe caught in a hole by the “U” shaped area in the photographs shown to her at her deposition. Under these circumstances, the Defendant has not met its burden of showing that the Plaintiff failed to identify the area of her fall or how the fall happened. (See, e.g., Padilla v. CVS Pharmacy, 175 A.D.3d 584, 586, 107 N.Y.S.3d 428, 429 (2019)(denying summary judgment where plaintiff testified that he did not “take notice” of the crack prior to his fall, that his daughter showed him a photograph of the walkway several days after the accident and told him “this … is where you fell,” and plaintiff testified that he then recognized the spot as as the location of his fall, and where plaintiff also testified he felt the front of his left foot make contact with the “break” in the walkway). Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. A plaintiff need not have personal knowledge of the cause of his or her fall; instead plaintiff must establish the cause through admissible proof. (See Cipriano v. City of New York, 120 A.D.3d 738, 739, 991 N.Y.S.2d 363, 364 (2014)). It is only where plaintiff proffers mere speculation as to the cause of an accident, when there could have been many possible causes, that this circumstance is fatal to a cause of action. (See Vojvodic v. City of New York, 148 A.D.3d 1086, 1087, 51 N.Y.S.3d 534, 535 (2017)). Plaintiff’s description of the fall, wherein her foot caught in a hole or crack, and her immediate realization after her fall that the defect she observed on the floor caused her fall, which defect is memorialized in photographs, is more than sufficient to establish the cause of the fall. Consequently, for the foregoing reasons, Defendant’s Motion for Summary Judgment is denied. Accordingly it is ORDERED that Defendant’s Summary Judgment motion is hereby denied. Dated: May 18, 2023
