| Cruz v New York City Hous. Auth. |
| 2009 NY Slip Op 03687 [62 AD3d 643] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Cynthia Cruz, Respondent, v New York City HousingAuthority, Appellant. |
—[*1]
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (Taylor, J.), dated January 31, 2008, which denied, asuntimely, its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint is granted.
"A motion on notice is made when a notice of the motion . . . is served" (CPLR2211; see Rivera v Glen Oaks Vil.Owners, Inc., 29 AD3d 560 [2006]; Russo v Eveco Dev. Corp., 256 AD2d 566[1998]). In accordance with this rule, the defendant's motion for summary judgment was madeon June 29, 2007 when the motion was served, by mail, on the attorney for the plaintiff, and thuswas timely (see CPLR 2103 [b] [2]; 3212; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2006]). As tothe merits, the defendant submitted evidence sufficient to establish, prima facie, that the heightdifferential between the bathroom door saddle over which the plaintiff allegedly tripped and theadjacent floor was slight and trivial and, therefore, not actionable (see Trincere v County ofSuffolk, 90 NY2d 976 [1997]; Shiles v Carillon Nursing & Rehabilitation Ctr., LLC, 54 AD3d746 [2008]; Ayala v Gutin, 49AD3d 677 [2008]; Hargrove v Baltic Estates, 278 AD2d 278 [2000]). In opposition,the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. Contrary to thecontention of the plaintiff's expert, the Administrative Code of the City of New York §27-371 (h) does not apply to this case since the bathroom door saddle at issue merely separatedtwo interior spaces within the plaintiff's apartment (see Administrative Code of City ofNY § 27-232). Mastro, J.P., Dillon, Leventhal and Chambers, JJ., concur.