| Guerriero v Jand |
| 2008 NY Slip Op 09922 [57 AD3d 365] |
| December 18, 2008 |
| Appellate Division, First Department |
| Joann Guerriero, Appellant, v Ferdinand Jand et al.,Respondents. |
—[*1] Keane & Beane, P.C., White Plains (Eric L. Gordon of counsel), for Jands' respondents. Gannon Rosenfarb & Moskowitz, New York (Nicholas Gisonda of counsel), for Tom PierceManagement, LLC., respondent.
Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about October12, 2007, which, insofar as appealed from as limited by the briefs, in an action for personalinjuries sustained as the result of a trip and fall on an interior staircase, granted the Janddefendants' motion for summary judgment dismissing the complaint as against them, and grantedsummary judgment dismissing the complaint as against defendant Tom Pierce Management(TPM) pursuant to CPLR 3212 (b), unanimously affirmed, without costs.
Plaintiff fell on a marble step that contained a hairline crack and allegedly a small v-shapedchip, and her deposition testimony showed that the accident occurred in a lighted area that shetraveled several times a day. The Jand defendants established a prima facie entitlement tosummary judgment since the alleged defect, which was six inches long and one sixty-fourth of aninch wide, was trivial, did not constitute a trap or nuisance, and was not actionable as a matter oflaw (see Trincere v County of Suffolk, 90 NY2d 976 [1997]; Martin v Lafayette Morrison Hous.Corp., 31 AD3d 300 [2006]). Plaintiff failed to raise a triable issue of fact in opposition.
Although TPM's motion for summary judgment was untimely, in light of the evidenceshowing the trivial nature of the defect, the court properly granted summary judgment to TPM[*2]pursuant to CPLR 3212 (b) (see Filannino v Triborough Bridge &Tunnel Auth., 34 AD3d 280, 281 [2006]). Concur—Mazzarelli, J.P., Gonzalez,Catterson, McGuire and Acosta, JJ.