Summary
denying defendant's summary judgment motion because defendant failed to meet its burden of establishing as a matter of law that the alleged defect, a lip on a drain, was too trivial to constitute a dangerous condition
Summary of this case from Habecker v. KFC U.S. Properties, Inc.Opinion
2012-12-28
Elliott C. McFADDEN and Arguster McFadden, Plaintiffs–Respondents, v. NEW CASTLE HOTEL, LLC, Doing Business As Woodcliff Hotel & Spa, Defendant–Appellant.
Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered March 9, 2012. The order denied the motion of defendant for summary judgment. MacDonald & Hafner, Esqs., Buffalo (Shawn Martin of Counsel), for Defendant–Appellant. Atti Law, P.C., Cheektowaga (Mark Lewis of Counsel), for Plaintiffs–Respondents.
Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered March 9, 2012. The order denied the motion of defendant for summary judgment.
MacDonald & Hafner, Esqs., Buffalo (Shawn Martin of Counsel), for Defendant–Appellant. Atti Law, P.C., Cheektowaga (Mark Lewis of Counsel), for Plaintiffs–Respondents.
MEMORANDUM:
Plaintiffs commenced this action seeking damages for injuries sustained by Elliott C. McFadden (plaintiff) when he tripped and fell in defendant's hotel and broke his shoulder. Following discovery, defendant moved for summary judgment dismissing the complaint on the grounds that plaintiff was unable to identify the cause of his fall; any defect was trivial and nonactionable; and the absence of a defect in defendant's floor and floor drain eliminated any duty of inspection. Supreme Court properly denied defendant's motion. Even assuming, arguendo, that defendant established as a matter of law that the cause of the fall was speculative ( see Gafter v. Buffalo Med. Group, P.C., 85 A.D.3d 1605, 1606, 925 N.Y.S.2d 297), we conclude that plaintiffs raised an issue of fact concerning the cause of the fall by submitting plaintiff's deposition testimony and the accident and incident reports setting forth that plaintiff fell because a grate over a floor drain was lower than the floor. We further conclude on the record before us that “ defendant failed to meet its burden of establishing as a matter of law that the alleged defect ‘was too trivial to constitute a dangerous or defective condition’ ” ( Cuebas v. Buffalo Motor Lodge/Best Value Inn, 55 A.D.3d 1361, 1362, 865 N.Y.S.2d 184;see generally Trincere v. County of Suffolk, 90 N.Y.2d 976, 977–978, 665 N.Y.S.2d 615, 688 N.E.2d 489;Gafter, 85 A.D.3d at 1605–1606, 925 N.Y.S.2d 297). Indeed, one of defendant's employees acknowledged the presence of a lip on the drain. Finally, inasmuch as there is an issue of fact concerning the existence of a defect, we do not reach defendant's contention that the absence of a defect eliminated any duty of inspection.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.