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

1416
CA 12-01121
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, AND VALENTINO, JJ.


ELLIOTT C. MCFADDEN AND ARGUSTER MCFADDEN,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

NEW CASTLE HOTEL, LLC, DOING BUSINESS AS
WOODCLIFF HOTEL & SPA, DEFENDANT-APPELLANT.


MACDONALD & HAFNER, ESQS., BUFFALO (SHAWN MARTIN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

ATTI LAW, P.C., CHEEKTOWAGA (MARK LEWIS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered March 9, 2012. The order denied the motion
of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Elliott C. McFadden (plaintiff) when he tripped
and fell in defendant’s hotel and broke his shoulder. Following
discovery, defendant moved for summary judgment dismissing the
complaint on the grounds that plaintiff was unable to identify the
cause of his fall; any defect was trivial and nonactionable; and the
absence of a defect in defendant’s floor and floor drain eliminated
any duty of inspection. Supreme Court properly denied defendant’s
motion. Even assuming, arguendo, that defendant established as a
matter of law that the cause of the fall was speculative (see Gafter v
Buffalo Med. Group, P.C., 85 AD3d 1605, 1606), we conclude that
plaintiffs raised an issue of fact concerning the cause of the fall by
submitting plaintiff’s deposition testimony and the accident and
incident reports setting forth that plaintiff fell because a grate
over a floor drain was lower than the floor. We further conclude on
the record before us that “defendant failed to meet its burden of
establishing as a matter of law that the alleged defect ‘was too
trivial to constitute a dangerous or defective condition’ ” (Cuebas v
Buffalo Motor Lodge/Best Value Inn, 55 AD3d 1361, 1362; see generally
Trincere v County of Suffolk, 90 NY2d 976, 977-978; Gafter, 85 AD3d at
1605-1606). Indeed, one of defendant’s employees acknowledged the
presence of a lip on the drain. Finally, inasmuch as there is an
issue of fact concerning the existence of a defect, we do not reach
                                 -2-                          1416
                                                         CA 12-01121

defendant’s contention that the absence of a defect eliminated any
duty of inspection.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
