| Tese-Milner v 30 E. 85th St. Co. |
| 2009 NY Slip Op 01708 [60 AD3d 458] |
| March 10, 2009 |
| Appellate Division, First Department |
| Angela Tese-Milner, as Trustee of Howard C. Friedman, et al.,Respondents, v 30 East 85th Street Company, Respondent, and 30 East 85th StreetCondominium Associates, Appellant, et al., Defendant. |
—[*1] Glenn H. Shore, New York, for Angela Tese-Milner and Howard C. Friedman, respondents. Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for 30 East 85th StreetCompany, respondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered April 10, 2008,which, to the extent appealed from as limited by the briefs, denied defendant 30 East 85th StreetCondominium Associates' motion for summary judgment dismissing the complaint and all crossclaims against it, unanimously affirmed, without costs.
Defendant moved for summary judgment dismissing the complaint on the ground that thesidewalk defect that allegedly caused plaintiff's accident was so trivial as to be nonactionable(see Trincere v County of Suffolk, 90 NY2d 976 [1997]). After examining all "the factspresented, including the width, depth, elevation, irregularity and appearance of the defect alongwith the time, place and circumstances of the injury" (Trincere at 978 [internal quotationmarks and citation omitted]), the court correctly found that an issue of fact was presented. Thephotographs, which show a depressed area with a rough, uneven surface, do not unequivocallyshow a defect that is trivial. Plaintiff's expert stated that the defect measured more thanthree-quarters of an inch deep, more than seven inches long, and approximately four inches wide,and opined that it was unsafe and could cause a pedestrian to trip. The court properly consideredthe expert's affidavit, in which, contrary to defendant's contention, the expert stated that hisconclusion that the defect had existed for a considerable time before the accident occurred was[*2]based on his comparison of the sidewalk condition during hisinspection of the site and the condition as shown in photographs taken immediately after theaccident. Concur—Friedman, J.P., Gonzalez, Sweeny and McGuire, JJ.