Defendant has moved for summary judgment in this action that arises from a trip and fall on a sidewalk on the grounds of the defendant hospital. Defendant makes two main arguments: 1) the condition complained of by Plaintiffs was a "trivial defect" that is not actionable and 2) Defendant maintained its premises in a reasonably safe condition and neither created, nor had actual or constructive notice of, any dangerous condition. Plaintiffs have opposed the motion, taking issue with both of Defendant's assertions.

The proponent of a summary judgment motion bears the initial burden of making a prima facie showing of entitlement to judgement as a matter of law by submitting sufficient evidence to show that no material issues of fact exist (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If that showing is made, the burden of proof then shifts to responding party to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]).

The defense submits an affirmation from counsel with various exhibits and an affidavit from an expert. The expert visited the scene, inspected the sidewalk and took measurements and photographs. The expert opines that the sidewalk was maintained in a reasonably safe condition, with no violations of any applicable codes, rules or standards. The expert also concludes from a review of deposition testimony and his knowledge of the width of the human gait that Plaintiff's right foot was approximately 2-3 feet from the righthand side of the sidewalk, where the elevation difference between the two subject slabs is smaller, thus emphasizing the trivial nature of the defect alleged. Defendant argues that the trivial nature of the alleged defect, with no applicable code or rule violations, is conclusive evidence that the sidewalk was maintained in a reasonably safe condition.

The defense further argues that, even assuming the elevation difference between the slabs to be a dangerous condition, there is no evidence in the record that Defendant created it, or that [*2]Defendant had neither actual nor constructive notice of it. The defense points to deposition testimony by Defendant's Director of Facilities as to Defendant's practice of examining the hospital grounds for any dangerous conditions, with other hospital employees and employees of the valet parking service at the hospital reporting any dangerous conditions they might observe. No observations of any dangerous condition involving the sidewalk were known to Defendant.

In opposition, Plaintiffs submit their own affidavits, an affirmation of counsel with exhibits, and an affidavit from their own expert. Plaintiffs argue that Defendant has failed to carry its burden because the sidewalk defect is not trivial, and that Defendant cannot demonstrate that it did not have notice. Plaintiffs' argument centers on two facts stated in Defendant's motion papers. First, Defendant placed pliable expansion joint material in between the two concrete slabs at issue. Second, the higher slab had been chipped or worn down by snow plowing. Plaintiffs assert these facts as establishing that the sidewalk defect is not trivial and that Defendant either created or had notice of the dangerous condition.

There is much argument by both sides on questions such as safety standards that may apply and precisely where Mr. Gregor was walking. The two experts disagree on many points, including the actual dimensions of the height difference between the two slabs. Examining one of these points of contention is sufficient to adjudicate the motion.

There is ample case authority cited by Defendant for the proposition that the height difference as measured by either expert here, without more, would constitute a trivial defect that is non-actionable. The example that is perhaps most favorable to the defense is Castle v. Six Flags, Inc. (81 AD3d 1137 [3d Dept 2011]), where a height difference of approximately one inch was held to be a trivial defect in a ramp otherwise in good condition and free of debris on a clear and sunny day. Here, the maximum vertical difference measured was 15/16 of an inch by Plaintiffs' expert, while Defendant's expert measured no more than ¾ of an inch. Plaintiffs, however, cite Brumm v. St. Paul's Evangelical Lutheran Church (143 AD3d 1224 [3d Dept 2016]) for the proposition that an additional factor, such as cracked or broken concrete, can raise a question of fact as to whether an actionable dangerous condition exists.

The additional factor asserted by Plaintiffs here is the pliable expansion joint material between the two concrete slabs at issue. Plaintiffs' expert opines — and demonstrates in one of the photographs appended to his affidavit — that the expansion joint material could flex upward if struck by a pedestrian's toe and impede the foot, thus presenting a "trap-like" dangerous condition. In the view of this Court, Plaintiff's expert has demonstrated the presence of the type of additional factor envisioned by the Court of Appeals in Hutchinson v. Sheridan Hill House Corp. (26 NY3d 66 [2015]). There is thus a question of fact as to whether the condition alleged by Plaintiffs is a trivial defect or an actionable dangerous condition.

There is also a fact question as to whether Defendant created the dangerous condition alleged by Plaintiffs. Defendant acknowledges that its agents placed the expansion joint material between the two slabs. The photographs in the record show that the material does not completely fill the gap between the slabs. Specifically, there is a separation between the lower slab and the expansion joint material, which is what appears to create the trap-like condition demonstrated by Plaintiffs' expert. If this condition existed when the expansion joint material was installed, then Defendant created the condition asserted by Plaintiffs.

Likewise, the record here does not, in the view of this Court, foreclose the prospect that Defendant had constructive notice of the dangerous condition alleged by Plaintiffs. The testimony by Defendant's Senior Director of Facilities Management as to Defendant's practice of [*3]performing an inspection of hospital grounds only once per year allows for the possibility that a dangerous condition could exist for months without attention. This stands in contrast to the situation in the case relied upon by the defense (Cietek v. Bountiful Bread of Suyvesant Plaza, Inc., 74 AD3d 1628 [3d Dept 2010]), where the defendant's employees "regularly" checked for hazards and the testifying witness had been stationed approximately five feet from the scene of the accident for three hours immediately prior to the plaintiff's fall. If the expansion joint material completely filled the gap when it was installed, but either shrinkage of the material over time or further movement of the slabs caused it to separate from the lower slab, then a question arises as to when this happened and when Defendant was, or should have been, aware of it. The testimony offered from Defendants' employees and the valet parking employee as to not observing any dangerous conditions does not remedy this omission. The very nature of a "trap-like" condition includes the fact that it is not necessarily open and obvious (see Hutchinson v. Sheridan Hill House Corp., 26 NY3d at 78).

On the record here, questions of fact as to whether a dangerous condition existed and whether Defendant either created it or had constructive notice of it preclude an award of summary judgment on the defense motion. The remaining contentions by the parties have been considered, but do not alter this outcome. Therefore, in consideration of the foregoing, it is hereby

ORDERED, that the motion by Defendant seeking summary judgment dismissing the Complaint in this action is denied.