| DeLaRosa v City of New York |
| 2009 NY Slip Op 03126 [61 AD3d 813] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Nertha DeLaRosa, Appellant, v City of New York,Defendant, and Broadway Crescent Realty, Inc., et al., Respondents. |
—[*1] Abrams, Gorelick, Friedman & Jacobson, P.C., New York, N.Y. (Bryan Goldstein ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered October24, 2007, as granted that branch of the motion of the defendants Broadway Crescent Realty, Inc.,and M&N Management Corp. which was for summary judgment dismissing the complaintinsofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendants Broadway Crescent Realty, Inc., and M&N ManagementCorp. which was for summary judgment dismissing the complaint insofar as asserted againstthem is denied.
On January 31, 2005, the plaintiff was allegedly injured when, while walking on a sidewalkowned, controlled, and maintained by the defendants Broadway Crescent Realty, Inc., and M&NManagement Corp. (hereinafter together the defendants), she tripped and fell due to a heightdifferential between two concrete slabs. Contending that the defective condition that purportedlycaused the plaintiff's accident was too trivial to be actionable, the defendants moved, inter alia,for summary judgment dismissing the complaint insofar as asserted against them, and theSupreme Court granted that branch of the defendants' motion. We reverse the order insofar asappealed from.
Generally, the issue of whether a dangerous or defective condition exists on real property[*2]depends on the particular facts of each case, and is properly aquestion of fact for the trier of fact (see Trincere v County of Suffolk, 90 NY2d 976, 977[1997]). However, a property owner may not be held liable for trivial defects, not constituting atrap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Taussig v Luxury Cars of Smithtown,Inc., 31 AD3d 533, 533-534 [2006]). In determining whether a defective condition istrivial as a matter of law, a court must examine the facts presented, including the width, depth,elevation, irregularity, and appearance of the condition, along with the time, place, andcircumstances of the injury (see Trincere v County of Suffolk, 90 NY2d at 978). There isno "minimal dimension test" or "per se rule" that the condition must be of a certain height ordepth in order to be actionable (Trincere v County of Suffolk, 90 NY2d at 977).
Here, the defendants failed to make a prima facie showing that the allegedly defectivecondition at issue was trivial and, thus, not actionable. The evidence submitted in support of themotion, which included the plaintiff's description of the condition at her deposition, as well asthe affidavit of an expert who inspected and photographed the accident site over two years afterthe accident, failed to demonstrate that the condition was trivial as a matter of law (see Hahn v Wilhelm, 54 AD3d896, 898-899 [2008]; Boxer vMetropolitan Transp. Auth., 52 AD3d 447, 448 [2008]; Portanova v Kantlis, 39 AD3d731, 732 [2007]). Since the defendants failed to establish their prima facie entitlement tojudgment as a matter of law, the Supreme Court should have denied that branch of their motionwhich was for summary judgment dismissing the complaint insofar as asserted against them,regardless of the sufficiency of the plaintiff's opposition papers (see Shalamayeva v Park 83rd St.Corp., 32 AD3d 387, 388 [2006]). Santucci, J.P., Florio, Covello and Dickerson, JJ.,concur.