The following numbered papers were read on this motion: NYSCEF Document Numbers 30-53. Document Number 55 (supplemental affidavit) is not read inasmuch as it contains new evidence in reply. Document Number 54 (affirmation in reply) is read only to the extent it contains legal argument (references to the new evidence in reply are disregarded). Document Number 56 (letter to Court objecting to new evidence) has been read. DECISION AND ORDER Upon the foregoing papers, the Court having elected to determine the within motion on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.),” and due deliberation having been had thereon, It is hereby ORDERED as follows: Plaintiff alleged that she tripped and fell down from a stretcher being in a hallway outside the waiting room in Defendant hospital she was leaving on April 11, 2019. “It was right there, it was right in place there it don’t fully barge the door completely. It was like half of it just parked off of it right there…. I didn’t see it move. I tripped right over it, and then hit so hard I hit so hard facedown.” (NYSCEF Doc No. 37, Plaintiff’s EBT Transcript at 99-100.) “I tripped over the stretcher, Mr. Max, I tripped over the stretcher” (id. at 104). She testified that she did not see it (id. at 105), but she was wearing her glasses, the door was open, and she was looking “[s]traight ahead”; “Both sides straight ahead, straight ahead.” (Id. at 106.) “Open doors and walls and stuff like that. The bed was right at the door, but I didn’t see the bed.” (Id. at 106.) The stretcher “was in the hallway, to the side in the hallway, to the side, unoccupied” (id. at 107). “Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular facts and circumstances of each case and is generally a question of fact for the jury (see Gutman v. Todt Hill Plaza, LLC, 81 AD3d 892 [2011]; Shah v. Mercy Med. Ctr., 71 AD3d 1120 [2010]; Fasano v. Green-Wood Cemetery, 21 AD3d 446, 446 [2005]). A condition that is generally apparent ‘to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted’ (Mazzarelli v. 54 Plus Realty Corp., 54 AD3d 1008, 1009 [2008]). The determination of ‘[w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances’ (id. at 1009; see Shah v. Mercy Med. Ctr., 71 AD3d at 1120).” (Dalton v. North Ritz Club, 147 AD3d 1017, 1017 [2d Dept 2017.) "A landowner is under no duty to protect or warn against an open and obvious condition, which, as a matter of law, is not inherently dangerous (see Fitzgerald v. Sears, Roebuck & Co., 17 AD3d 522 [2005]; Orlando v. Audax Constr. Corp., 14 AD3d 500 [2005]; Capozzi v. Huhne, 14 AD3d 474 [2005]; Jang Hee Lee v. Sung Whun Oh, 3 AD3d 473 [2004]; Cupo v. Karfunkel, 1 AD3d 48 [2003]). Here, the plaintiff allegedly was injured when she tripped on the footrest of a wheelchair in a hospital room. The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the presence of the wheelchair was open and obvious, known to the plaintiff, and not inherently dangerous (see Mastellone v. City of New York, 29 AD3d 540 [2006]; Fitzgerald v. Sears, Roebuck & Co., 17 AD3d at 522; Weiner v. Saks Fifth Ave., 266 AD2d 390 [1999]; Lamia v. Federated Dept. Stores, 263 AD2d 498 [1999]; Sewer v. Fat Albert’s Warehouse, 235 AD2d 414 [1997]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.” (Terranova v. Staten Is. Univ. Hosp., 57 AD3d 765 [2d Dept 2008].) Here, the stretcher was clearly an open and obvious condition that was not inherently dangerous and, therefore, Defendant was not liable. “The elements of common-law negligence are (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) a showing that the breach of that duty constituted a proximate cause of the injury (see Akins v. Glens Falls City School Dist., 53 NY2d 325 [1981]; Pulka v. Edelman, 40 NY2d 781 [1976]; Alvino v. Lin, 300 AD2d 421 [2002])” (Ingrassia v. Lividikos, 54 AD3d 721 [2008]). Defendant submitted the affirmation of Dr. Jeffrey V. Dermksian, an orthopedic surgeon, who reviewed Plaintiff’s medical records. Although Plaintiff had a longstanding pre-existing right knee condition, she claimed that she injured her right knee in the aforedescribed alleged accident. (NYSCEF Doc No. 34, Dermksian Aff.) Dr. Dermksian opined that the fall described by Plaintiff did not create a further tear or worsen her already injured knee (see id. 39). As part of his review, he compared her pre-accident, 2015 right knee MRI with the 2019 post-accident MRI on a side-by-side basis, and “there was no appreciable difference” (id. 34). Plaintiff submitted no expert medical opinion evidence to rebut that of Dr. Dermksian. Rather, she relied on counsel’s discussion of the MRI reports (NYSCEF Doc No. 52 33). When expert medical opinion evidence is called for, the defendant submits proof in evidentiary form sustaining their burden of establishing that the plaintiff had no cause of action, and in opposition the plaintiff failed to submit proof in evidentiary form sufficient to defeat the motion, the affidavit of plaintiff’s attorney is insufficient to raise a triable issue of fact; the detailed expert opinion submitted by the defendant requires an expert response. (See Bills v. Africano, 132 AD2d 935 [4th Dept 1987], citing Fiore v. Galang, 64 NY2d 999 [1985]; Wind v. Cacho, 111 AD2d 808,809 [2d Dept 1985].) An attorney’s affirmation relying on unsworn medical evidence is insufficient to defeat summary judgment (see CPT Med. Servs, P.C. v. New York Central Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]). Without expert medical opinion evidence to support her claim that she sustained a right knee injury proximately resulting from tripping over the stretcher, Plaintiff failed to establish the element of common law negligence, to wit, that a breach of a duty of care owed by Defendant to her constituted a proximate cause of an injury. Therefore, Defendant’s motion for summary judgment is GRANTED, and the Clerk shall enter judgment for Defendant accordingly. CPLR 5513 (a) provides: “Time to take appeal as of right. An appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.” Dated: November 3, 2023
