| Hahn v Wilhelm |
| 2008 NY Slip Op 07088 [54 AD3d 896] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Barbara Hahn, Appellant, v Kenneth Wilhelm et al.,Respondents. |
—[*1] Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P. Slattery of counsel), for respondentKenneth Wilhelm. Kardisch, Link & Associates, P.C., Mineola, N.Y. (Matthew M. Frank of counsel), forrespondent Xavier's Restaurant Corporation, doing business as Cilantro's.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated March26, 2007, as granted that branch of the motion of the defendant Kenneth Wilhelm which was forsummary judgment dismissing the complaint insofar as asserted against him and, upon searchingthe record, awarded summary judgment dismissing the complaint insofar as asserted against thedefendant Xavier's Restaurant Corporation, doing business as Cilantro's.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendant Kenneth Wilhelm which was for summary judgmentdismissing the complaint insofar as asserted against him, and substituting therefor a provisiondenying that branch of the motion; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
The plaintiff was injured when she tripped and fell on an asphalt-covered sidewalk near theentrance of a restaurant operated by the defendant Xavier's Restaurant Corporation, doingbusiness as Cilantro's (hereinafter Xavier's Restaurant). The plaintiff claims that the accidentoccurred when her foot [*2]became caught in a cracked anduneven portion of the sidewalk. Xavier's Restaurant is located in a strip mall owned by thedefendant Kenneth Wilhelm. After depositions were conducted, Xavier's Restaurant moved, interalia, for summary judgment dismissing the complaint insofar as asserted against it on the groundthat it had no duty to maintain the subject sidewalk under the terms of its lease with Wilhelm.Wilhelm then separately moved, among other things, for summary judgment, contending that thealleged defect in the sidewalk was too trivial to be actionable. The Supreme Court denied XavierRestaurant's motion for summary judgment, concluding that it had failed to sustain its burden ofmaking a prima facie showing that it had no duty to maintain the subject sidewalk. However, thecourt granted Wilhelm's motion, inter alia, for summary judgment dismissing the complaintinsofar as asserted against him on the ground that the subject defect was trivial and, uponsearching the record, also awarded summary judgment to Xavier's Restaurant on this ground.
On appeal, the plaintiff contends that the Supreme Court erred in awarding both defendantssummary judgment on the ground that the defect which caused her fall was trivial. We agree. Theissue of whether a dangerous condition exists on real property depends on the particular facts andcircumstances of each case, and generally presents a question of fact for the jury (see Trincerev County of Suffolk, 90 NY2d 976 [1997]; Portanova v Kantlis, 39 AD3d 731 [2007]; Mishaan v Tobias, 32 AD3d 1000[2006]; Herring v Lefrak Org., 32AD3d 900 [2006]). However, injuries resulting from trivial defects are not actionable, and indetermining whether a defect is trivial, a court must take account of all "the facts presented,including the width, depth, elevation, irregularity, and appearance of the defect along with the'time, place, and circumstance' of the injury" (Trincere v County of Suffolk, 90 NY2d976, 978 [1997], quoting Caldwell v Village of Is. Park, 304 NY 268 [1952]; see Portanova v Kantlis, 39 AD3d731 [2007]; Herring v Lefrak Org.,32 AD3d 900 [2006]).
Here, Wilhelm failed to make a prima facie showing that the alleged defect upon which theplaintiff tripped was too trivial to be actionable. In support of his motion, Wilhelm relied uponthe affidavit of an expert who inspected and photographed the accident site over 2½ yearsafter the plaintiff's fall. The appearance of the defect as depicted in the photographs taken by theexpert was noticeably different from its appearance as depicted in the photographs which theparties used for identification purposes during their depositions. Moreover, the depositiontestimony of the president of Xavier's Restaurant, which Wilhelm submitted in support of hismotion, revealed that a subsequent repair had been made to the accident site. Under thesecircumstances, the expert's affidavit and photographs were insufficient to establish that noactionable defect existed at the time of the accident (see Ferington v Dudkowski, 49 AD3d 1267 [2008]; Lal v Ching Po Ng, 33 AD3d 668[2006]). Furthermore, the deposition testimony of the parties, and the photographs identified bythe plaintiff and the president of Xavier's Restaurant as depicting the defect at the time of theaccident, demonstrated that a triable issue of fact exists as to whether the defect was trivial (see Portanova v Kantlis, 39 AD3d731, 732 [2007]; Herring v LefrakOrg., 32 AD3d 900, 901 [2006]; Shalamayeva v Park 83rd St. Corp., 32 AD3d 387, 388 [2006]; Fairchild v J. Crew Group, Inc., 21AD3d 523 [2005]).
As an alternative ground for affirmance, Wilhelm contends that he cannot be held liable forthe accident because he had no notice of the subject defect in the sidewalk (see Parochial BusSys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]). However, Wilhelm failed tomake a prima facie showing of his entitlement to summary judgment on this ground because hesubmitted no evidence showing that the defect existed for an insufficient length of time to havediscovered and remedied it (seeWheaton v East End Commons Assoc., LLC, 50 AD3d 675 [2008]; Sampino v Crescent Assoc., LLC, 34AD3d 779 [2006]; Pearson vParkside Ltd. Liab. Co., 27 AD3d 539 [2006]).[*3]
The Supreme Court properly awarded summary judgmentto Xavier's Restaurant on the alternative ground that it had no contractual obligation to maintainand repair the sidewalk where the accident occurred, and did not occupy or control this area (see Wheaton v East End Commons Assoc.,LLC, 50 AD3d 675, 676-677 [2008]; Morgan v Chong Kwan Jun, 30 AD3d 386, 388 [2006]; Marrone v South Shore Props., 29AD3d 961, 963 [2006]; DePompo v Waldbaums Supermarket, 291 AD2d 528, 529[2002]). In this regard, we note that while the lease between Xavier's Restaurant and Wilhelmrequired the tenant to keep the leased premises, including exterior entrances, "in good order,condition and repair," the plaintiff's accident occurred on the sidewalk near a wooden deck whichled to the entrance of the restaurant. This area was not part of the leased premises which Xavier'sRestaurant was required to keep in good repair. Moreover, under the terms of the lease, thelandlord retained exclusive control and management over the portions of the strip mall whichwere provided for the common use of all tenants, employees, and customers. Spolzino, J.P.,Santucci, Eng and Leventhal, JJ., concur. [See 2007 NY Slip Op 30815(U).]