| Berry v Rocking Horse Ranch Corp. |
| 2008 NY Slip Op 09342 [56 AD3d 711] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Barbara Berry, Respondent, v Rocking Horse RanchCorporation, Appellant. |
—[*1] Kelly & Meenagh, Poughkeepsie, N.Y. (Thomas F. Kelly, III of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Dutchess County (Sproat, J.), dated March 25, 2008, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On September 15, 2005, the plaintiff was a guest at the Rocking Horse Ranch (hereinafter theRanch) participating in a conference sponsored by her employer. The plaintiff and a coworkerwere walking on the driveway in front of the main entrance to the Ranch when the plaintiff's leftfoot allegedly became stuck in a hole, causing her to fall and sustain injuries. The plaintiffcommenced this action against the defendant Rocking Horse Ranch Corporation, which movedfor summary judgment dismissing the complaint on the ground that the alleged defect was tootrivial to be actionable. The Supreme Court denied the defendant's motion. We affirm.
"The issue of whether a dangerous condition exists on real property depends on the particularfacts and circumstances of each case, and generally presents a question of fact for the jury"(Hahn v Wilhelm, 54 AD3d 896, 898 [2008]; see Trincere v County of Suffolk,90 NY2d 976 [1997]). However, injuries resulting from trivial defects are not actionable(see Hahn v Wilhelm, 54 AD3d at 898; [*2]Portanovav Kantlis, 39 AD3d 731, 732 [2007]; Herring v Lefrak Org., 32 AD3d 900 [2006]).A court determining whether or not a defect is trivial must examine "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 NY2d at978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]; see Boxer vMetropolitan Transp. Auth., 52 AD3d 447, 448 [2008]; Maxson v Brentwood Union FreeSchool Dist., 31 AD3d 506, 507 [2006]; Fairchild v J. Crew Group, Inc., 21 AD3d523, 524 [2005]; Corrado v City of New York, 6 AD3d 380 [2004]). "[T]here is no'minimal dimension test' or per se rule that a defect must be of a certain height or depth in orderto be actionable" (Trincere v County of Suffolk, 90 NY2d at 977).
Here, the defendant failed to make a prima facie showing of entitlement to judgment as amatter of law. Contrary to the defendant's contention, the evidence submitted in support of itsmotion for summary judgment, including the purported photographs of the accident site that wereof poor quality, were insufficient to demonstrate, as a matter of law, that the alleged drivewaycondition was too trivial to be actionable (see Hahn v Wilhelm, 54 AD3d at 898-899;Boxer v Metropolitan Transp. Auth., 52 AD3d at 448; Portanova v Kantlis, 39AD3d at 732; Herring v Lefrak Org., 32 AD3d at 901; Maxson v Brentwood UnionFree School Dist., 31 AD3d at 507; Corrado v City of New York, 6 AD3d at 380).Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment.
The defendant's remaining contentions either are without merit or have been renderedacademic by our determination. Ritter, J.P., Florio, Miller and Dillon, JJ., concur.