        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

928
CA 16-00300
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.


JOAN STEIN, AS EXECUTRIX OF THE ESTATE OF
MEREDITH M. POWERS, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SARKISIAN BROTHERS, INC., DEFENDANT-APPELLANT.


COOK, WETTER, CLOONAN, KURTZ & MURPHY, P.C., KINGSTON (ERIC M. KURTZ
OF COUNSEL), FOR DEFENDANT-APPELLANT.

KALTER, KAPLAN, ZEIGER & FORMAN, WOODBOURNE (IVAN KALTER OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order and partial judgment (one paper) of the
Supreme Court, Erie County (Donna M. Siwek, J.), entered May 19, 2015.
The order and partial judgment, insofar as appealed from, denied the
motion of defendant Sarkisian Brothers, Inc., seeking summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order and partial judgment insofar
as appealed from is unanimously reversed on the law without costs, the
motion is granted and the complaint is dismissed in its entirety.

     Memorandum: Plaintiff’s decedent commenced this action seeking
damages for injuries she sustained when her shoe caught on the
bullnose tile used as a transition from a concrete floor in the
hallway of an arena to the tile floor in a bathroom, which had an open
entrance. It is undisputed that defendant directed subcontractors to
install bullnose tile rather than a threshold as provided for in the
contract. Contrary to defendant’s contention, we conclude that
Supreme Court properly determined that plaintiff raised an issue of
fact whether it owed a duty of care to decedent because, “while
engaged affirmatively in discharging a contractual obligation, [it]
creat[ed] an unreasonable risk of harm to others, or increas[ed] that
risk” (Church v Callanan Indus., 99 NY2d 104, 111; see Hannigan v
Staples, Inc., 137 AD3d 1546, 1549; see generally Espinal v Melville
Snow Contrs., Inc., 98 NY2d 136, 141-142). We nevertheless conclude
that the court erred in determining that plaintiff raised an issue of
fact whether the alleged defect was trivial as a matter of law and
thus erred in denying defendant’s motion for summary judgment
dismissing the complaint.

     It is well established that we “must consider ‘all the facts and
                                 -2-                           928
                                                         CA 16-00300

circumstances presented’ . . . before concluding that no issue of fact
exists” whether the alleged defect is trivial as a matter of law
(Hutchison v Sheridan Hill House Corp., 26 NY3d 66, 77). Such issues
of fact include the dimensions of the alleged defect, its appearance
and elevation, and the time, place and circumstance of the injury (see
id.). Here, the record establishes that the bullnose tile was
slightly less than one-half of an inch in height and was not the same
color as the tile floor. Decedent testified at her deposition that
she was standing in the hallway conversing with a group of people,
approximately three to four feet from the bathroom, before she turned
to walk into the bathroom. She testified that she glanced at the tile
floor but did not see the “lip” that caught her shoe and caused her to
stumble and be propelled several feet before she struck the towel
dispenser. In opposition to defendant’s motion, plaintiff provided
the expert affidavit of an architect who opined that “such a vertical
edge constitutes a snare and a trap for those who might be distracted
by the crowd moving in and out of the bathroom.” We conclude that the
opinion of plaintiff’s expert is not sufficient to raise an issue of
fact whether the defect is trivial because it is speculative and
conclusory on that issue (see Ciccarelli v Cotira, Inc., 24 AD3d 1276,
1277), particularly because there is no indication in the record that
anyone other than decedent was entering or leaving the bathroom.
Furthermore, “the test established by the case law in New York is not
whether a defect is capable of catching a pedestrian’s shoe. Instead,
the relevant questions are whether the defect was difficult for a
pedestrian to see or to identify as a hazard or difficult to pass over
safely on foot in light of the surrounding circumstances” (Hutchinson,
26 NY3d at 80). Upon our review of the photos of the alleged defect
and in view of the less than ½-inch height of the bullnose tile and
the circumstances surrounding decedent’s accident (see Germain v
Kohl’s Corp., 96 AD3d 1474, 1475; Sharpe v Ulrich Dev. Co., LLC, 52
AD3d 1319, 1320), we conclude that, although an accident occurred that
is “traceable to the defect, there is no liability” because the
alleged defect “ ‘is so slight that no careful or prudent [person]
would reasonably anticipate any danger from its existence’ ” under the
circumstances present here (Hutchinson, 26 NY3d at 81).




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
