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POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT).

The Second Department determined the sentencing court erred when it found that defendant was not eligible for youthful offender status. Criminal possession of a weapon in the third degree is not an armed felony:

The Supreme Court denied the defendant’s application for youthful offender status based upon its mistaken belief that he had been convicted of an armed felony, which required the court to find either mitigating circumstances that bear directly upon the manner in which the crime was committed or that the defendant was only a minor participant in the crime … . The People correctly concede that the court erred in finding that the defendant had been convicted of an armed felony, since criminal possession of a weapon in the third degree pursuant to Penal Law 265.02(7) does not require proof that the firearm was loaded… . Thus, the defendant was eligible for youthful offender treatment without any finding of mitigation (see CPL 720.10[2]). Accordingly, we remit the matter to the Supreme Court …, for a new determination of the defendant’s application for youthful offender status and resentencing thereafter. People v Loney, 2018 NY Slip Op 05606, Second Dept 8-1-18

CRIMINAL LAW (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/YOUTHFUL OFFENDER (POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/ARMED FELONY (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))/CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE  (YOUTHFUL OFFENDER, POSSESSION OF A WEAPON IN THE THIRD DEGREE IS NOT AN ARMED FELONY, DEFENDANT THEREFORE WAS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS WITHOUT ANY FINDING OF MITIGATION (SECOND DEPT))

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RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming the grant of summary judgment to the defendants in this medical malpractice action, explained the criteria for the applicability of the doctrine of res ipsa loquitur in this context:

In opposition to the defendants’ motion, the plaintiff relied on the doctrine of res ipsa loquitur. To rely on that doctrine, a plaintiff must show that “(1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendants’ exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . A plaintiff “need not conclusively eliminate the possibility of all other causes of the injury” … . A plaintiff must only show that the likelihood of other possible causes of the injury is so reduced ” that the greater probability lies at defendant’s door'” … .

Here, the redacted and unsigned affirmation of the plaintiff’s medical expert was not entitled to consideration … and, in any event, was insufficient to raise a triable issue of fact. The plaintiff failed to raise a triable issue of fact regarding the applicability of the doctrine of res ipsa loquitur, as she did not demonstrate that the injury is of a kind that ordinarily does not occur in the absence of negligence or that the instrumentality that caused her injury was within the defendants’ exclusive control … . Pagano v Cohen, 2018 NY Slip Op 05599, Second Dept 8-1-18

MEDICAL MALPRACTICE (RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))/RES IPSA LOQUITUR (MEDICAL MALPRACTICE, RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))

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POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT).

The Second Department determined that a police report was not sufficient to timely notify the town of the essential facts of potential lawsuit stemming from a collision between petitioner’s vehicle and a town snow plow. The petition for leave to file a late notice of claim was properly denied:

… [T]he petitioner failed to demonstrate that the Village obtained timely, actual knowledge of the essential facts constituting the claim. The late notice of claim served upon the Village approximately three months after the 90-day statutory period had elapsed did not provide the Village with actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the statutory period … . Furthermore, the police accident report alone, without any evidence of further investigation by the Village, cannot be considered actual knowledge of the essential facts underlying the claim against the Village … . Matter of Vega v Incorporated Vil. of Freeport, 2018 NY Slip Op 05598, Second Dept 8-1-18

MUNICIPAL LAW (NEGLIGENCE, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, NEGLIGENCE, OLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))/POLICE REPORTS (NEGLIGENCE, NOTICE OF CLAIM, POLICE REPORT DID NOT NOTIFY TOWN OF THE ESSENTIAL FACTS OF A CLAIM STEMMING FROM A COLLISION WITH A TOWN SNOW PLOW, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (SECOND DEPT))

NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT).

The Second Department determined petitioner’s motion for leave to renew was properly denied. The context was an action by a municipal employee, a senior tree pruner, arguing that he was entitled to a hearing before termination because of his status as a member of a volunteer fire department (an “exempt firefighter”). Petitioner’s attempt to present evidence of the “exempt firefighter” status in a motion to renew was rejected:

“In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination” … . However, “[t]he requirement that a motion for renewal be based on new facts is a flexible one” … . The new or additional facts presented “either must have not been known to the party seeking renewal or may, in the Supreme Court’s discretion, be based on facts known to the party seeking renewal at the time of the original motion” … . “However, in either instance, a reasonable justification’ for the failure to present such facts on the original motion must be presented” … .

” [T]he Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion'” … . A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation… .  Here, we agree with the Supreme Court’s finding that the petitioner failed to offer a reasonable justification for his failure to present the documents relating to his status as an “exempt” firefighter in opposition to the original motion to dismiss. Matter of Serviss v Incorporated Vil. of Floral Park, 2018 NY Slip Op 05597, Second Dept 8-1-18

CIVIL PROCEDURE (NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT))/CPLR 2221 (NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT))/RENEW, MOTION TO (NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT))

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INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim should not have been granted. Infant plaintiff was allegedly injured when he tripped and fell over a discarded metal frame on village property. The court noted that the mother’s derivative cause of action was time-barred because the infancy toll of the statute of limitations did not apply to her:

… [T]he Supreme Court should have denied that branch of the petition which was for leave to serve a late notice of claim upon the Village on behalf of the mother in her individual capacity, as the statute of limitations for her derivative cause of action had expired at the time the proceeding was commenced … . The infancy toll (see CPLR 208) is personal to the infant and does not extend to a parent’s derivative cause of action … . Matter of R.N. v Village of New Sq., 2018 NY Slip Op 05595, Second Dept 8-1-18

MUNICIPAL LAW (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)/NEGLIGENCE (CIVIL PROCEDURE, MUNICIPAL LAW, INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STATUTE OF LIMITATIONS  (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/INFANCY TOLL (STATUTE OF LIMITATIONS, (INFANCY TOLL OF STATUTE OF LIMITATIONS DOES NOT APPLY TO MOTHER’S DERIVATIVE ACTION IN THIS SLIP AND FALL ACTION AGAINST A MUNICIPALITY, PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

COURT PROPERLY REFUSED TO CONSIDER EVIDENCE SUBMITTED WITH REPLY PAPERS (SECOND DEPT).

The Second Department noted that evidence submitted for the first time in reply papers was properly not considered. The context was a motion for leave to file a late notice of claim in a personal injury action. The evidence at issue was a supervisor’s report of injury and illness, presumably submitted to show the respondent’s awareness of petitioner’s injury. Matter of Murnane v New York City Sch. Constr. Auth., 2018 NY Slip Op 05594, Second Dept 8-1-18

CIVIL PROCEDURE (REPLY PAPERS, COURT PROPERLY REFUSED TO CONSIDER EVIDENCE SUBMITTED WITH REPLY PAPERS (SECOND DEPT))/REPLY PAPERS (COURT PROPERLY REFUSED TO CONSIDER EVIDENCE SUBMITTED WITH REPLY PAPERS (SECOND DEPT))

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SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined that the petition under the Surrogate’s Court Procedure Act seeking the appointment of a guardian should have been granted. Petitioner is the sister of a severely disable person, Anna. Petitioner established Anna could not care for herself and the appointment was necessary to manage Anna’s affairs. Surrogate’s Court erroneous dismissed the petition, finding that it should have been brought under the Mental Hygiene Law:

Pursuant to article 17-A of the Surrogate’s Court Procedure Act, “the court is authorized to appoint a guardian of the person [who is intellectually disabled] . . . if such appointment . . . is in the best interest of the person who is intellectually disabled.” Under the statutory scheme, a person is intellectually disabled if that person has been certified by, among other possibilities, one licensed physician and one licensed psychologist “as being incapable to manage him or herself and/or his or her affairs by reason of intellectual disability and that such condition is permanent in nature or likely to continue indefinitely” … .

Here, the record establishes that Anna is intellectually disabled within the meaning of Surrogate’s Court Procedure Act article 17-A. Further, the record also establishes that it would be in Anna’s best interest to have the petitioner appointed as her guardian. The record shows that Anna is incapable of providing for her most basic needs and that in the absence of court-authorized guardianship, the petitioner, Anna’s only sibling, is unable to adequately manage Anna’s affairs. Nothing in the record suggests that the petitioner is unqualified to act as Anna’s guardian. To the contrary, despite the legal limitations she has encountered, the petitioner has been managing Anna’s affairs and providing for Anna since their parents’ deaths. Matter of Anna F., 2018 NY Slip Op 05590, Second Dept 8-1-18

TRUSTS AND ESTATES (GUARDIANSHIP, SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT))/GUARDIANSHIP  (GUARDIANSHIP, SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT))/MENTAL HYGIENE LAW (GUARDIANSHIP, SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT).

The Second Department determined that plaintiff’s motion for summary judgment and plaintiff’s motion to set aside the verdict in this rear-end collision case were properly denied.  Plaintiff was stopped when the rear-end collision occurred. However, defendant demonstrated that he was unable to stop because of slippery conditions:

On his motion for summary judgment, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that his vehicle was stopped when it was struck in the rear by the defendant’s vehicle… . However, the defendant raised a triable issue of fact as to the existence of a nonnegligent explanation; namely, an unavoidable skidding on a snow-covered road … . …

A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party … .

Here, in light of the defendant’s testimony regarding his speed and distance from the plaintiff’s vehicle just before the collision and the testimony that he immediately applied the brakes when the plaintiff’s brake lights illuminated but nonetheless was caused to skid by snowy road conditions, there was a valid line of reasoning and permissible inferences by which the jury could reach the conclusion that the defendant was not at fault in the happening of the accident … . Miller v Steinberg, 2018 NY Slip Op 05585, Second Dept 8-1-18

NEGLIGENCE (REAR END COLLISIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT))/TRAFFIC ACCIDENTS  (REAR END COLLISIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT))/REAR END COLLISIONS (PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT))/CIVIL PROCEDURE (REAR END COLLISIONS, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS REAR-END COLLISION CASE PROPERLY DENIED (SECOND DEPT))

VIDEO SHOWED ELEVATOR DOORS OPERATED PROPERLY, PLAINTIFF ALLEGED INJURY FROM DOORS CLOSING ON HER, SUMMARY JUDGMENT GRANTED TO HOTEL AND ELEVATOR MAINTENANCE COMPANY (SECOND DEPT). ​

The Second Department determined the defendants, a hotel and elevator maintenance company, were entitled to summary judgment in this elevator-injury case. Plaintiff alleged she was injured when the doors of a freight elevator closed on her. A video showed that the doors remained open for the programmed period of time (20 seconds), plaintiff attempted to get off the elevator at the end of the 20 second period, and the doors retracted as soon as they came into contact with the plaintiff:

“A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect, or where it fails to notify the elevator company with which it has a maintenance and repair contract about a known defect” … . “An elevator company which agrees to maintain an elevator in safe operating condition can also be held liable to an injured passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found'” … . …

[The] evidence established that the elevator operated properly and was not defective, and that the defendants lacked actual or constructive notice of any alleged defective condition that caused the plaintiff’s injuries … . Hussey v Hilton Worldwide, Inc., 2018 NY Slip Op 05581, Second Dept 8-1-18

NEGLIGENCE (VIDEO SHOWED ELEVATOR DOORS OPERATED PROPERLY, PLAINTIFF ALLEGED INJURY FROM DOORS CLOSING ON HER, SUMMARY JUDGMENT GRANTED TO HOTEL AND ELEVATOR MAINTENANCE COMPANY (SECOND DEPT))/ELEVATORS (VIDEO SHOWED ELEVATOR DOORS OPERATED PROPERLY, PLAINTIFF ALLEGED INJURY FROM DOORS CLOSING ON HER, SUMMARY JUDGMENT GRANTED TO HOTEL AND ELEVATOR MAINTENANCE COMPANY (SECOND DEPT))

RAISED PORTION OF A FLOOR MAT WAS NOT A TRIVIAL DEFECT AS A MATTER OF LAW IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the alleged raised area of a floor mat was not trivial as a matter of law:

The plaintiff gave deposition testimony to the effect that she tripped and fell over a raised portion of a rubber mat near the entrance of the supermarket. The plaintiff’s husband testified at his deposition that the raised portion of the mat was “two fat fingers high.” The defendants’ store manager testified at his deposition that the bump in the mat was about half an inch high. …

In determining a motion for summary judgment, a court is generally limited to the issues or defenses that are the subject of the motion … . Here, the Supreme Court should not have granted the motion on the ground that the plaintiff did not know what caused her to fall, since the issue was not raised by the defendants in their motion papers. In any event, the defendants failed to establish, prima facie, that the plaintiff did not know what caused her to fall … .

Here, the evidence submitted by the defendants, including a surveillance footage of the incident, was insufficient to demonstrate, prima facie, that the condition of the mat was trivial as a matter of law and therefore not actionable … . Green v Price Chopper, Inc., 2018 NY Slip Op 05578, Second Dept 8-1-18

NEGLIGENCE (RAISED PORTION OF A FLOOR MAT WAS NOT A TRIVIAL DEFECT AS A MATTER OF LAW IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (RAISED PORTION OF A FLOOR MAT WAS NOT A TRIVIAL DEFECT AS A MATTER OF LAW IN THIS SLIP AND FALL CASE (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, RAISED PORTION OF A FLOOR MAT WAS NOT A TRIVIAL DEFECT AS A MATTER OF LAW IN THIS SLIP AND FALL CASE (SECOND DEPT))

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