Calendar Date: May 31, 2018
Schneider & Palcsik, Plattsburgh (Mark Schneider of
counsel), for appellant.
O'Connor, O'Connor, Bresee & First, PC, Albany
(Kathryn Conklin-Mabey of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Powers, J.), entered
March 7, 2018 in Clinton County, which granted
defendant's motion for summary judgment dismissing the
sustained injuries when she tripped and fell in the
women's locker room of a wellness center operated by
defendant. She claimed that she fell when the toe of her left
sneaker caught the edge of a floor mat as she exited a shower
stall after she had showered and dressed. She commenced this
negligence action alleging that defendant created a dangerous
condition by improperly installing the floor mats in a manner
that allowed them to move and, further, that defendant had
notice of the dangerous condition. Following discovery,
defendant moved for summary judgment. Supreme Court granted
defendant's motion and plaintiff appeals.
establish entitlement to summary judgment in a slip and fall
case, a defendant bears the initial burden of demonstrating
that it had maintained the property in a reasonably safe
condition and that it did not create or have actual or
constructive notice of the specific allegedly dangerous
condition that resulted in the plaintiff's injury"
(Torgersen v A & F Black Cr. Realty, LLC, 158
A.D.3d 1042, 1042  [internal quotation marks, brackets
and citations omitted]). Defendant submitted deposition
testimony from Christopher Booth, who was responsible for
operation of the wellness center, who stated that defendant
had received no prior complaints regarding placement of the
mats or reports of customers having tripped on the mats. He
further testified that the mats were inspected for any safety
concerns on a daily basis. Booth participated in the process
of selecting the mats, testified that their configuration had
not been changed or modified since they had been installed in
2011 and concluded that the mats did not create an inherently
dangerous condition. Nicole Williams, an employee of
defendant, similarly testified that defendant had received no
complaints that the mats were unsafe nor any prior reports
that a customer had fallen on the mats. This proof was
sufficient to establish defendant's burden of
establishing prima facie entitlement to summary judgment,
thereby shifting the burden to plaintiff to demonstrate the
existence of a triable issue of fact (see id. at
opposition, plaintiff submitted, among other things, her
affidavit, photographs of the mats and the affidavit of
Frederick Bremer, an architect who investigated the condition
of the locker room. Plaintiff also relied on her own
deposition testimony. Plaintiff testified that she was
familiar with the locker room and showers because she had
been utilizing them five days each week for 11 years and that
the photographs accurately depict the condition of the mats.
She noted that there were two large, square mats in the
shower area that were each comprised of nine smaller
interlocking squares. Plaintiff claimed that because the
larger mats were never connected, they often moved in
relation to each other so that they sometimes overlapped and
at other times were located several inches apart - a
condition that she claimed had existed continuously since the
mats were installed. Plaintiff also stated that she had
personally rearranged the mats on several occasions prior to
her injury to eliminate the risk of her tripping on them.
According to plaintiff, she fell when the toe of her sneaker
caught the exposed edge of a mat near the exit to the shower
in the location that she marked on one of the photographs
that she had submitted.
concluded that the mats were not properly installed.
Specifically, he opined that a gap was created between the
mats because they were neither attached to each other nor
otherwise properly secured. The resulting gap exposed the
edges of the mats, and Bremer opined that the
nine-sixteenth-inch height of the exposed mat edges
constituted a tripping hazard that violated applicable design
standards. He also noted that the manufacturer of the mats
recommended installation of a sloped transition piece to
eliminate such exposed edges, and that transition pieces were
not utilized in the location where plaintiff fell.
the foregoing in the light most favorable to plaintiff, as
the party opposing summary judgment (see id. at
1044), we conclude that a material issue of fact exists
regarding whether defendant created a dangerous condition
. Accordingly, Supreme Court erred in
granting defendant's motion.
P.J., Egan Jr., Mulvey and Aarons, JJ., concur.
that the order is reversed, on the law, with ...