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

122
CA 15-01336
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.


JOSEPH W. SLATTERY, AS EXECUTOR OF THE ESTATE
OF JOAN M. SLATTERY, DECEASED, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOPS MARKETS, LLC, DEFENDANT-APPELLANT.


KENNEY, SHELTON, LIPTAK, NOWAK, LLP, BUFFALO (MELISSA A. FOTI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BROWN CHIARI LLP, BUFFALO (BRIAN HOGAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered July 1, 2015 in a personal injury action.
The order denied defendant’s motion for summary judgment dismissing
the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: In this action, plaintiff seeks damages for injuries
sustained by Joan M. Slattery (decedent) when she allegedly tripped
and fell on a rug entering defendant’s store. We agree with defendant
that Supreme Court erred in denying its motion seeking summary
judgment dismissing the complaint.

     Although the issue “whether a certain condition qualifies as
dangerous or defective is usually a question of fact for the jury to
decide . . . , summary judgment in favor of a defendant is appropriate
where a plaintiff fails to submit any evidence that a particular
condition is actually defective or dangerous” (Przybyszewski v Wonder
Works Constr., 303 AD2d 482, 483; see Bishop v Marsh, 59 AD3d 483,
483; Mullaney v Koenig, 21 AD3d 939, 939). Here, defendant
established its entitlement to judgment as a matter of law by showing
that the rug it placed in the entranceway to the store did not
constitute a dangerous or defective condition (see Jacobsohn v New
York Hosp., 250 AD2d 553, 553-554). Defendant’s submissions, which
included the deposition testimony of decedent and photographs of the
rug, established that the rug had been laid flat over a “recessed mat
system” at the entrance to the store, and decedent did not see
anything wrong with the rug before she fell (see Leib v Silo Rest.,
Inc., 26 AD3d 359, 360; Londner v Big V Supermarkets, 309 AD2d 1122,
                                 -2-                           122
                                                         CA 15-01336

1123). Those submissions established that decedent simply tripped
over the rug, not because of a defect or irregularity in the rug, but
because her foot picked up the edge of the rug (see Jacobsohn, 250
AD2d at 554).

     In opposition, plaintiff failed to raise a triable issue of fact.
We agree with defendant that the affidavit of plaintiff’s expert is
speculative and conclusory (see e.g. Ciccarelli v Cotira, Inc., 24
AD3d 1276, 1277; Phillips v McClennan St. Assoc., 262 AD2d 748, 749-
750). In his affidavit, the expert opined that the placement of the
rug over the recessed mat system caused a tripping hazard inasmuch as
the rug was “not designed to be used over another carpet or the
recessed mat system but on a flat, level and flush floor.” Although
the rug may not have been designed to be placed over another rug or
the recessed mat system, the video of the incident, which was
submitted in opposition to the motion, shows that decedent tripped
over the front edge of the rug. There is no indication that the rug
slipped, and there is no record evidence that the rug constituted a
defective or dangerous condition at the time of the fall. We conclude
that “the mere placement of the [rug] by the front door of the
defendant’s premises was not an inherently dangerous condition” (Leib,
26 AD3d at 360). We note in any event that the affidavit of
plaintiff’s expert was based on his examination of the area where
decedent fell approximately 2½ years after the accident and thus is
insufficient to raise a triable issue of fact with respect to the
condition of that area at the time of decedent’s fall (see Ferington v
Dudkowski, 49 AD3d 1267, 1268).

     In view of our determination, we do not address defendant’s
alternative contentions.




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
