The following e-filed documents listed on NYSCEF (Motion #001) numbered 31-42, 56, 58-59, 62-63 were read on this motion.

Upon the foregoing documents, and after oral argument conducted on June 13, 2024, on Motion Sequence No. 001, Motion Sequence No. 001 is resolved and therefore, it is hereby,

ORDERED, that Plaintiff's request for summary judgment pursuant to CPLR § 3212 on the grounds that there is no genuine, material issues of fact which would warrant a trial of this matter and as it pertains to the issue of Defendant's liability is DENIED with prejudice; and it is [*2]further,

ORDERED, that the matter is adjourned for a status/settlement conference on next adjourn date, July 31, 2024, at 9:30 AM at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

On or about August 3, 2022, Plaintiffs commenced this negligence action to recover for personal injuries allegedly sustained by Plaintiff, because of a trip and fall that occurred on the sidewalk in front of Defendant's property located at 475 Seaview Avenue, Staten Island, New York. Plaintiff filed Motion Sequence No. 001 by Notice of Motion on May 3, 2024 seeking (a) summary judgment pursuant to CPLR § 3212 on the grounds that there is no genuine, material issues of fact which would warrant a trial of this matter and as it pertains to the issue of Defendant's liability; and (b) for such other and further relief that this Court may deem just and proper.

Defendant filed opposition on May 30, 2024. Plaintiff filed reply on June 6, 2024. Oral argument was completed on June 13, 2024.

On August 20, 2019, Plaintiff, Mohammad Kamran, was walking on Seaview Ave, when he allegedly tripped over a "raised cement block" outside of Defendant's property located at 475 Seaview Avenue, Staten Island, New York. (NY St Cts Filing [NYSCEF] Doc No. 35 at pages 31). Plaintiff contends that there was a defect in the sidewalk, his right foot was caught when it hit the raised cement block, and he fell forward on his hands and his face, losing consciousness for a brief undetermined amount of time. (see id at 37-38).

Plaintiff testified at his EBT regarding the location of his fall, as follows:

Q. Where on the sidewalk did you fall?

A. What do you mean by where?

Q. Like what area of the sidewalk did you fall?

A. Oh, I don't remember that.

Q. Do you remember if there were any signs near where you fell?

A. No signs, no.

Q. Were there any parking meters where you fell?

A. There was a parking meter, yes.

Q.Were there any witnesses to the accident?

A. No. (see id at 38-39).

Plaintiff further testified regarding the location of his fall:

Q. So how do you know the exact location where you fell?

A. Because I know I fell right there.

Q. But how do you know where right there was — like how did you differentiate?

A. I don't know how to explain that. Yes, I was there. (see id at 52).

During Plaintiff's EBT he was shown photographs of the location of his alleged fall and questioned as follows:

Q. Can you identify the location of this picture?

A. It's the same picture you showed me in the beginning. It's the same picture.

Q. Can you identify the location?

A. No, I cannot identify the location.

Q. Does this picture accurately represent the condition of the sidewalk that caused you to fall?

A. Yes.

Q. So this is the same, this picture depicts the location where you fell?

A. That's where it was taken, yes.

Q. Mr. Kamran, you just testified that you can't identify that location, judging from the picture, so how do you know this is where you fell?

A. Because I see some — in the first picture that you showed me, this is a similar picture. So she took them, I don't know why she took this picture. I don't know.

Q. Mr. Kamran, are you assuming that these pictures are all the same location because your wife took them?

A. I'm not assuming, I'm sure that she took them.

Q. No, but are you assuming these are all the same location because your ex-wife took them?

A. Yeah, she took them, yes. Yes.

Q. And she took pictures of the same exact spot?

A. Same exact spot, yes.

Q. And you're sure of that?

A. Yes, I'm 100 percent sure.

Q. So when I'm showing you these pictures, you haven't been able to identify the location of a couple of them. Can we agree that you don't know exactly where you fell?

A. No, I can't tell you. I can't. I cannot. Just looking at this picture, I cannot. (see id at 81-82).

Paul Hansen, the Senior Director of Facilities Management at Staten Island University Hospital, testified that in late July or Early August 2019, he performed a survey of the grounds, which identified issues that were of concern. (NY St Cts Filing [NYSCEF] Doc No. 36 at pages 32-33). Defendant contends that the areas of sidewalk identified by Mr. Hansen that needed repair (see id at 43-45) were open and obvious and not deemed difficult to pass over safely. Mr. Hansen testified that prior to August 20, 2019, there was no report by the groundskeepers that an area of the sidewalk needed repair. (see id at 20-21).

"Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (see Andre v. Pomeroy, 35 NY2d 361 [1974] citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 NY2d 57 [1966]).

"[T]he elements of a cause of action sounding in negligence are: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the [*3]plaintiff as a result thereof" (see Poon v Nisanov, 162 AD3d 804 [2d Dept 2018] quoting Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]).

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (see Sapienza v Harrison, 191 AD3d 1028 [2d Dept 2021] quoting Tsyganash v Auto Mall Fleet Mgt., Inc., 163 AD3d 1033 [2d Dept 2018]; citing Carlos Rodriguez, Appellant, v City of New York, Respondent., 31 NY3d 312 [2018]).

"In order to impose liability upon a defendant in a slip and fall case, there must be evidence tending to show the existence of a dangerous or defective condition, and that the defendant either created the condition or had actual or constructive knowledge of it" (see Sadowsky v 2175 Wantagh Ave. Corp., 281 AD2d 407 [2d Dept 2001] citing Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; King v New York City Transit Auth., 266 AD2d 354 [2d Dept 1999]; Patrick v Cho's Fruit & Vegetables, 671 NYS.2d 274 [2d Dept 1998]).

Defendants content that they performed a yearly inspection of the grounds and that several areas around the grounds required repair. (NY St Cts Filing [NYSCEF] Doc No. 36 at pages 25-26). On August 1, 2019, following this survey, Mr. Hansen sent an email to Van Alphen, a general construction company, regarding various repairs needed on the hospital grounds. (see id at 23-24). This email sent to the construction company does not express concern that any area needed immediate repair because it was in a dangerous condition. (NY St Cts Filing [NYSCEF] Doc No. 37). The designation of the repairs did not indicate that there was a hazard; nor did Mr. Hansen's testimony at deposition indicate otherwise. Mr. Hansen further testified that prior to the date of the incident, there was no feedback from the maintenance department regarding any issues along Seaview Avenue. (see id at 20-21).

"In determining whether a defect is trivial, courts 'must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury'" (see Easley v U Haul, 166 AD3d 852 [2d Dept 2018] quoting Kavanagh v Archdiocese of the City of NY, 152 AD3d 654 [2d Dept 2017]; citing Trincere v County of Suffolk, 90 NY2d 976 [1997]). "[T]here is no 'minimal dimension test' or per se rule that a defect must be . . . a certain minimum height or depth in order to be actionable" (see id quoting Trincere v County of Suffolk, 90 NY2d 976 [1997]).

"[A] defendant 'may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection'" (see id quoting Hutchinson v Sheridan Hill House Corp., 26 NY3d 66 [2015]; citing Liebl v Metropolitan Jockey Club, 10 AD2d 1006 [2d Dept 1960]).

Plaintiff alleges that the hospital had constructive notice of the alleged defect based upon a Google Image photograph from 2013. (NY St Cts Filing [NYSCEF] Doc No. 41). The image submitted by Plaintiff is taken from a different angle, and it is not possible to determine from the photographs submitted difference in elevation. (NY St Cts Filing [NYSCEF] Doc No. 39; 40).

Defendant contends that any alleged defect in the sidewalk located at 475 Seaview Avenue was open, obvious, and/or a trivial defect. In the instant matter, Plaintiff testified that on August 20, 2019, he parked in the same parking lot that he had previously parked in and traversed the same sidewalk as he had previously walked for prior appointments. (NY St Cts [*4]Filing [NYSCEF] Doc No. 35 at pages 31-34). Plaintiff further testified the day was nice day and sunny. (see id at 35). Plaintiff maintained that he was walking normally and was not distracted in any way prior to falling. (see id at 35-36).

"On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party'" (see Shabat v State of New York, 177 AD3d 1009 [2d Dept, 2019] quoting Vega v Restani Constr. Corp., 18 NY3d 499 [2012]; Ortiz v. Varsity Holdings, LLC, 18 NY3d 335 [2011]).

Here, viewing the evidence in the light most favorable to the Defendant, as the nonmoving party there are issues of fact to be determined. Plaintiff was unable to determine exactly where he fell. References in Plaintiff's testimony indicated that there was a parking meter located at the area where the fall allegedly took place and references were made to the presence of a tree at the same location. Plaintiff's testimony was clear that her was unable to identify the location where he fell. (NY St Cts Filing [NYSCEF] Doc No. 35 at pages 81-82).

The evidence submitted further fails to conclusively demonstrate the existence of a dangerous or defective condition nor does the evidence demonstrate that the defendant had actual or constructive knowledge of it. (see Sadowsky v 2175 Wantagh Ave. Corp., 281 AD2d 407 [2d Dept 2001]). The evidence as submitted does not permit the Court to examine the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury. (see Easley v U Haul, 166 AD3d 852 [2d Dept 2018]).

Accordingly, the Plaintiff's request for summary judgment pursuant to CPLR § 3212 on the grounds that there is no genuine, material issues of fact which would warrant a trial of this matter and as it pertains to the issue of Defendant's liability is DENIED with prejudice.

It is hereby ORDERED, that Plaintiff's request for summary judgment pursuant to CPLR § 3212 on the grounds that there is no genuine, material issues of fact which would warrant a trial of this matter and as it pertains to the issue of Defendant's liability is DENIED with prejudice; and it is further,

ORDERED, that the matter is adjourned for a status/settlement conference on next adjourn date, July 31, 2024, at 9:30 AM at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of the Court.