| Maurer v John A. Coleman Catholic High School |
| 2012 NY Slip Op 00279 [91 AD3d 1168] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| Patricia A. Maurer, Appellant, v John A. Coleman CatholicHigh School, Respondent. |
—[*1] Kenny, Stearns & Zonghetti, New York City (Kevin J. O'Donnell of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Melkonian, J.), entered October 14,2010 in Ulster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff, while attending a Christmas craft fair, tripped and fell on defendant's gymnasiumfloor, which had been covered with protective floor mats. She allegedly caught her foot on araised mat in an area where two mats overlapped. Plaintiff commenced this action asserting thatdefendant failed to properly affix the mats to the gymnasium floor thus creating a trippinghazard. Following disclosure, defendant moved for summary judgment, and Supreme Courtgranted the motion and dismissed the complaint. Plaintiff appeals.
" 'To prevail on its motion for summary judgment, defendant was required to establish thatits property had been maintained in a reasonably safe condition, and that it did not create adangerous condition that caused plaintiff's fall or have actual or constructive notice of thatcondition' " (Carpenter v J. Giardino,LLC, 81 AD3d 1231, 1231 [2011], lv denied 17 NY3d 710 [2011], quoting Stewart v Canton-Potsdam Hosp. Found.,Inc., 79 AD3d 1406, 1406 [2010]; see Phillips v Northway Mall Assoc., 243AD2d 786, 787 [1997]). Defendant offered proof that, to protect the gymnasium floor duringvarious activities ranging from graduation to school plays, [*2]eight mats were rolled out and overlapped about six inches. Theywere described as being approximately the thickness of a necktie and composed of a rubbery orvinyl material. The mats were routinely inspected for tears or rips. The president of the school'sparent association stated that, after the mats are rolled out and put in place, they are inspected forwrinkles or imperfections. If any wrinkles or imperfections are found, the mats are taped down inthat area. He further testified that he inspected the floor mats the morning of the accident, prior toopening the craft fair to the public, and he did not recall any problems. Plaintiff's accidentoccurred about 30 minutes after the craft fair opened to the public. Defendant met its thresholdburden of showing that it did not create the condition or have sufficient notice thereof (see Cochetti v Wal-Mart Stores, Inc.,24 AD3d 852, 853 [2005]).
The burden shifted to plaintiff, and she submitted an affidavit from an engineer in an effort toshow a factual issue as to whether defendant's placement of the mats created a dangerouscondition. An expert's affidavit must set forth a sufficient foundation for an opinion and not bemerely conclusory (see Bilinski v Bankof Richmondville, 12 AD3d 911, 912 [2004]; Phillips v McClellan St. Assoc.,262 AD2d 748, 749 [1999]). Plaintiff's expert did not examine defendant's mats and he simplyreferred generically to the mats as similar to many on the market. He acknowledged in his reportthat taping all seams was not required and that he was unaware of national or industry standardsfor installing these types of mats on gym floors. We agree with Supreme Court that plaintiff'sexpert failed to show an adequate foundation for his opinion and that such opinion wasconclusory.
There was no evidence that defendant had actual notice that the mat had wrinkled or lifted inthe area where plaintiff tripped. With regard to constructive notice, plaintiff submitted anaffidavit from a witness who indicated that she observed the mat upon which plaintiff tripped tobe slightly raised before plaintiff fell. However, as noted by Supreme Court, this witnessunequivocally testified at her deposition that she did not observe the mat prior to plaintiff's fall,and she offered no explanation in her affidavit for the apparent significant inconsistency with herearlier testimony (see Gould v International Paper Co., 223 AD2d 964, 966 [1996], lvdenied 88 NY2d 808 [1996]). Moreover, plaintiff fell within about 30 minutes of the craftfair opening to the public and the entire area had been inspected that morning prior to theopening. The record fails to reveal triable issues on constructive notice (see Cochetti vWal-Mart Stores, Inc., 24 AD3d at 853; Lewis v Bama Hotel Corp., 297 AD2d 422,423 [2002]; cf. Negri v Stop & Shop, 65 NY2d 625, 626 [1985] [factual issue onconstructive notice where there was evidence that grocery aisle with broken jar had not beeninspected for as long as two hours]).
Spain, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.