Defendants Sagamore Hotel and Resort ("Sagamore") and Green Island Associates are moving for summary judgment in an action which arises out of a trip and fall at the Sagamore in Bolton Landing, on June 6, 2008 when plaintiff, Judith Goldstein, alleges she tripped and fell down steps at the west entrance of the reception building which led up to what was then the front desk of the Sagamore, suffering personal injuries.^[FN1] Plaintiff generically alleges the stairways, floors and walkways were dangerous, hazardous and unsafe and that defendants were negligent in allowing the premises to remain in a dangerous condition by failing to maintain its floors, stairways and, or, walkways. In her bill of particulars plaintiff amplifies her complaint by claiming the area was in a dangerous, defective and trap-like condition. In her testimony at an examination before trial the plaintiff described entering the Sagamore by ascending a set of steps, registering at the hotel and then, while descending those same steps felt that "something on the step grabbed [her] shoe" and the next moment she was "flying in the air." In her testimony the plaintiff described this step seeming, at the time, as "concave" or uneven. The plaintiff could not indicate whether she had fallen from the third or fourth step from the bottom and is not sure what had caused her to fall. Either one year or several months after her fall the plaintiff returned to the area of these events and noticed an indentation, approximately 1/4" deep on a step in the area from where she had fallen.

The co-plaintiff husband, Stanley Goldstein, testified that he did not notice any problem with the steps at the Sagamore on the day of his wife's accident and that neither he nor his wife took note of the particular step from which she had fallen. The deposition exhibits include [*2]photographs which depict erosion on the stairs at the Sagamore but the plaintiff cannot identify these as photographs of the stair or step upon which she tripped.

In support of the summary judgment motion the Sagamore presents the testimony of employees - one of whom saw the plaintiff shortly after this incident - and another recording being told by her that she had fallen from the third step from the bottom and onto the parking lot. This same version is also preserved in an accident report prepared by a Sagamore employee. Furthermore, photographs of this area were taken by Sagamore employees at that time and each, in their testimony, claim there was nothing noticeably wrong with the steps. As notable as it was in Costello v. Pizzeria Uno of Albany, Inc, 2016 WL 3004758 [May 26, 2016] "defendant's submissions fail...to include any objective physical data, measurements or an evaluation of the floor surface" (see Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66, 82—83 [2015]; Padarat v. New York City Tr. Auth., 137 AD3d 1095, 1097 [2016]). Defendants also argue the existence of the 1/4 inch indentation is irrelevant either because there is no evidence that this condition was present at the time of the incident or, alternatively that the indentation is too trivial to be considered dangerous. Lastly defendants argue there is no evidence that this condition existed for a long enough period of time to have been discovered or that the defendants had actual notice of the condition.

In opposition plaintiffs' counsel submits an affirmation which extensively quotes the plaintiff's deposition testimony relating to an identification of the step from which the plaintiff had fallen. There seems to be little dispute that the step from which the plaintiff began her fall was the third step from the bottom. The plaintiff has yet to address the significance of photographs taken at a later date and, particularly, whether they fairly and accurately depict the condition of the stairs on June 6, 2008.

Similarly, the defendants do not, by their submissions, establish these later taken photographs would not be admissible at trial. While that may ultimately occur the parties, are not now at trial. It is unnecessary to address whether the asserted defect is trivial or not as the threshold question is to establish the condition of the area at the time of the incident, not merely an identification of the stair's location.

Viewing all of the evidence in the light most favorable to the plaintiffs, as the Court must, on this motion for summary judgment (see Gronski v. County of Monroe, 18 NY3d 374 [ 2011] it would be improper to grant summary judgment to the defendants.

The within constitutes the Decision and Order of this Court.

Therefore, having considered the Affidavit of Eileen M. Haynes, Esq. sworn to October 16, 2015 together with Exhibits "A" through "K", Defendants' Memorandum of Law dated October 15, 2015, Affidavit of Edward Jay sworn to October 15, 2015 together with Exhibits "A" and "B", Affirmation of Herbert I. Ellis, Esq. dated December 8, 2015 with Exhibits "A" through "C", Reply Affidavit of Eileen M. Haynes, Esq. sworn to December 16, 2015 and a Reply Memorandum of Law dated December 16, 2015, it is hereby

ORDERED defendants' motion for summary judgment is denied; and it is further

ORDERED that any further relief, as sought, which is not specifically mentioned herein has, nevertheless, been expressly considered and is denied, and it further

ORDERED that counsel for the parties are directed to appear for a conference on July 15, 2016 at 10:00 A.M. at the Warren County Courthouse.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated October 15, 2015. Counsel for plaintiffs is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all parties in accordance with CPLR § 5513.