| Ryan v KRT Prop. Holdings, LLC |
| 2007 NY Slip Op 09013 [45 AD3d 663] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Gaetana Ryan et al., Appellants, v KRT Property Holdings,LLC, et al., Respondents. |
—[*1] Mintzer Sarowitz Zeris Levda & Meyers, New York, N.Y. (Erika L. Omundson of counsel),for respondents KRT Property Holdings, LLC, KRT Property Holdings Manager, LLC, and LilacDe, LLC. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Gregory S. Katz,Jamie Kulovitz, and Jennifer Oxman of counsel), for respondents National WholesaleLiquidators, Inc., doing business as National Wholesale Liquidators and National WholesaleLiquidators of Yonkers, Inc., doing business as National Wholesale Liquidators.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limitedby their brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.),dated August 25, 2006, as granted those branches of the separate motions of the defendants KRTProperty Holdings, LLC, KRT Property Holdings Manager, LLC, and Lilac De, LLC, and thedefendants National Wholesale Liquidators, Inc., doing business as National WholesaleLiquidators and National Wholesale Liquidators of Yonkers, Inc., doing business as NationalWholesale Liquidators, which were for summary judgment dismissing the complaint insofar asasserted against them, and denied that branch of their cross motion which was for additionaldiscovery, and (2) from so much of an order of the same court dated December 6, 2006, asdenied their cross motion for leave to renew and reargue.
Ordered that the order dated August 25, 2006 is affirmed insofar as appealed from; and it isfurther,[*2]
Ordered that the appeal from so much of the order datedDecember 6, 2006 as denied that branch of the plaintiffs' cross motion which was for leave toreargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated December 6, 2006 is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The injured plaintiff tripped and fell while exiting a shopping center. The area where she fellcontained a walkway with an asphalt ramp cut into it to allow customers to drive up to the curbto load merchandise into their vehicles. The injured plaintiff was traversing this walkwaytowards the parking lot, watching for oncoming traffic, when she put her left foot down todiscover that "there was no sidewalk there" and fell. The plaintiffs commenced this action againstthe alleged owners of the shopping center, the defendants KRT Property Holdings, LLC, KRTProperty Holdings Manager, LLC, and Lilac de, LLC (hereinafter collectively KRT), and thealleged lessees of a store in the shopping center near where she fell, the defendants NationalWholesale Liquidators, Inc., doing business as National Wholesale Liquidators and NationalWholesale Liquidators of Yonkers, Inc., doing business as National Wholesale Liquidators(hereinafter collectively NWL). The plaintiffs claimed that the injured plaintiff fell as a result ofa drop in the sidewalk at the point that the ramp was cut into it, which constituted a dangerous ordefective condition. By order dated August 25, 2006, the Supreme Court, inter alia, granted thosebranches of KRT's and NWL's separate motions which were for summary judgment dismissingthe plaintiffs' complaint insofar as asserted against them. The court found that the plaintiffs failedto raise a triable issue of fact as to the existence of a defect or dangerous condition upon whichliability could be found. We affirm that order insofar as appealed from.
KRT and NWL established their prima facie entitlement to summary judgment bydemonstrating, through the injured plaintiff's deposition testimony and an expert's affidavit, thatthere was no defect at the accident site which proximately caused the injuries (see Siegel v Monsey New Sq. TrailsCorp., 40 AD3d 960, 961-962 [2007]). The plaintiffs failed to raise a triable issue of factin response. The plaintiffs' expert opined that the slope of the blacktop lane deviated from therequirements of the 1995 New York State Uniform Fire Prevention and Building Code by .09degrees. However, the expert did not indicate that these code provisions were in effect when thebuilding was constructed. There is no evidence as to when the building was constructed or thatany major renovations occurred that would make these provisions applicable. Accordingly, theplaintiffs' reliance on this alleged code violation is misplaced (see Meehan v David J. Hodder & Son,Inc., 13 AD3d 593, 594 [2004]).
Moreover, even if the deviation in the slope was a defect, "[a] property owner may not beheld liable in damages for trivial defects on a walkway, not constituting a trap or nuisance, as aconsequence of which a pedestrian might merely stumble . . . or trip" (Outlaw v Citibank, N.A., 35 AD3d564, 564-565 [2006] [internal quotation marks and citations omitted]; Hymanson vA.L.L. Assoc., 300 AD2d 358 [2002]). "In determining whether a defect is trivial, the courtmust examine all of the facts presented 'including the width, depth, elevation, irregularity, andappearance of the defect along with the time, place and circumstances of the injury' " (Outlawv Citibank, N.A., 35 AD3d at 564, quoting Sanna v Wal-Mart Stores, 271 AD2d595, 595 [2000]; see Trincere v County of Suffolk, 90 NY2d 976, 978 [1997]). [*3]A deviation of .09 degrees is too trivial to be actionable, especiallyin light of the fact that the accident took place in full daylight, in an area with which the injuredplaintiff admitted she was familiar, and which was painted yellow in order to attract a prudentobserver's attention.
Moreover, even if the height differential of six inches between the curb and the bottom of theramp exceeded applicable standards, there is no evidence as to exactly where along the borderbetween the sidewalk and the ramp the injured plaintiff fell. Accordingly, a finding that thisdisparity caused her accident would be purely speculative (see Koller v Leone, 299 AD2d396, 397 [2002]).
The plaintiffs also failed to establish that the industry standards they cite are applicable towhat constituted, as the injured plaintiff admitted at her deposition, a driving lane for use bycustomers in picking up and dropping off items at the premises.
The plaintiffs' remaining contentions are without merit. Schmidt, J.P., Rivera, Santucci andBalkin, JJ., concur.