| Ayala v Gutin |
| 2008 NY Slip Op 02545 [49 AD3d 677] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Angel Ayala et al., Respondents, v Boris Gutin,Appellant. |
—[*1] Trolman, Glaser & Lichtman, P.C., New York, N.Y. (Michael T. Altman of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Held, J.), dated June 26, 2007, which denied hismotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiffs commenced this action to recover damages allegedly arising from a trip andfall over a dangerous and defective door saddle. The defendant moved for summary judgmentdismissing the complaint. The Supreme Court denied the motion. We affirm.
Generally, the issue of whether a dangerous or defective condition exists depends on theparticular facts of each case, and is properly a question of fact for the jury (see Trincere vCounty of Suffolk, 90 NY2d 976 [1997]; Taussig v Luxury Cars of Smithtown, Inc., 31 AD3d 533 [2006]).However, a property owner may not be held liable for trivial defects, not constituting a trap or anuisance, over which a person might merely stumble, stub his or her toes, or trip (see Taussig v Luxury Cars of Smithtown,Inc., 31 AD3d 533 [2006]). In determining whether a defect is trivial, the court mustexamine all of the facts presented, including the "width, depth, elevation, irregularity andappearance of the defect along with the time, place, and circumstance of the injury" (Trincerev County of Suffolk, 90 NY2d 976, 978 [1997]; see Taussig v Luxury Cars of Smithtown, Inc., 31 AD3d 533[2006]). Here, in support of [*2]his motion, the defendant made aprima facie showing that the alleged dangerous and defective condition of the saddle was tootrivial to be actionable (see Trincere v County of Suffolk, 90 NY2d 976, 978 [1997]; see also Taussig v Luxury Cars ofSmithtown, Inc., 31 AD3d 533 [2006]). However, in opposition, the plaintiffs raisedtriable issues of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Zuckerman v City of New York, 49 NY2d 557 [1980]). Thus, the motion was properlydenied. Spolzino, J.P., Ritter, Dillon, Balkin and Leventhal, JJ., concur.