| Cuebas v Buffalo Motor Lodge/Best Value Inn |
| 2008 NY Slip Op 07411 [55 AD3d 1361] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Ada Cuebas, Individually and as Parent and Natural Guardian of AdalisDavila, Respondent, v Buffalo Motor Lodge/Best Value Inn, Appellant. |
—[*1] Nelson S. Torre, Buffalo, for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), enteredSeptember 14, 2007 in a personal injury action. The order denied the motion of defendant for summaryjudgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action, individually and on behalf of her daughter, seekingdamages for injuries sustained by her daughter when she tripped and fell on a sidewalk leading to thedoor of defendant's premises. According to plaintiff, her daughter caught her foot between sidewalkslabs with a height differential of approximately one inch, which caused her to fall forward into a glasswindow adjacent to the door. Supreme Court properly denied defendant's motion for summaryjudgment dismissing the complaint. "Whether a particular height difference between sidewalk slabsconstitutes a dangerous or defective condition depends on the peculiar facts and circumstances of eachcase, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time,place, and circumstances of the injury" (Tesak v Marine Midland Bank, 254 AD2d 717,717-718 [1998]; see generally Trincere v County of Suffolk, 90 NY2d 976, 977-978[1997]). Based on the record before us, we conclude that defendant failed to meet its burden ofestablishing as a matter of law that the alleged defect "was too trivial to constitute a dangerous ordefective condition" (Schaaf v Pork Chop,Inc., 24 AD3d 1277, 1278 [2005]; see Stewart v 7-Eleven, Inc., 302 AD2d 881[2003]; McKenzie v Crossroads Arena, 291 AD2d 860, 861 [2002], lv dismissed 98NY2d 647 [2002]). Present—Scudder, P.J., Hurlbutt, Martoche, Smith and Lunn, JJ.