| Ricker v Board of Educ. of Town of Hyde Park |
| 2009 NY Slip Op 02982 [61 AD3d 735] |
| April 14, 2009 |
| Appellate Division, Second Department |
| James B. Ricker, Respondent, v Board of Education ofTown of Hyde Park et al., Appellants. |
—[*1] Van De Water & Van De Water, LLP, Poughkeepsie, N.Y. (Janis M. Gomez Anderson ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Dutchess County (Pagones, J.), dated May 12, 2008, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint. "[T]here is no 'minimal dimension test' or per se rule that a defect mustbe of a certain minimum height or depth in order to be actionable" (Trincere v County ofSuffolk, 90 NY2d 976, 977 [1997]). Rather, a court must look at 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 at 978, quoting Caldwell vVillage of Is. Park, 304 NY 268, 274 [1952]). Here, the defendants failed to make a primafacie showing that the alleged sidewalk defect was trivial and therefore, not actionable (see Trumboli v Fifth Ave. Paving, 59AD3d 706 [ 2009]; Boxer vMetropolitan Transp. Auth., 52 AD3d 447 [2008]; Portanova v Kantlis, 39 AD3d 731, 732 [2007]; Mishaan v Tobias, 32 AD3d 1000[2006]; Maxson v Brentwood UnionFree School [*2]Dist., 31 AD3d 506 [2006];Adsmond v City of Poughkeepsie, 283 AD2d 598 [2001]). Skelos, J.P., Dillon, Covelloand Leventhal, JJ., concur.