| Bovino v J.R. Equities, Inc. |
| 2008 NY Slip Op 07953 [55 AD3d 399] |
| October 21, 2008 |
| Appellate Division, First Department |
| Annmarie Bovino et al., Respondents, v J.R. Equities, Inc.,et al., Appellants, et al., Defendant. |
—[*1] Frank V. Kelly, Bronx, for respondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered March 11, 2008,which denied defendant J.R. Equities' motion for summary judgment, unanimously affirmed,without costs.
There is no per se rule with respect to the dimensions of a defect that will give rise to liabilityon the part of a landowner or other party in control of premises (Argenio v MetropolitanTransp. Auth., 277 AD2d 165 [2000]). The motion court properly concluded that summaryjudgment was inappropriate since a triable issue of fact exists regarding whether the allegeddefect is actionable (see generally Trincere v County of Suffolk, 90 NY2d 976 [1997]).Notably, two height differentials were present at the threshold of the lobby and the stairwell, onebetween the lobby floor and the door saddle and another between the door saddle and thestairwell floor; there is conflicting evidence regarding the precise degree of the height differentialbetween the door saddle and the stairwell floor; and plaintiff's deposition testimony regarding theappearance of the threshold, which plaintiff did not see prior to her accident since the door hadbeen closed, and pictures of the area support plaintiff's contention that the threshold of the lobbyand the stairwell presented an actionable defect (see id. at 978; Fasano v Green-WoodCemetery, 21 AD3d 446, 446 [2005] ["defendant failed to make a prima facie showing thatthe condition upon which the plaintiff tripped and fell, a difference in elevation between thelanding of a concrete staircase and the adjoining walkway, which ranged up to two inches, for alength of approximately two feet, was trivial and nonactionable as a matter of law. The plaintiff's[*2]testimony together with photographs of the defectivecondition as well as all other relevant factors and surrounding circumstances demonstrated thatthere exist triable issues of fact"]). Concur—Mazzarelli, J.P., Catterson, McGuire, Acostaand Renwick, JJ.