| Rosello v City of New York |
| 2009 NY Slip Op 04222 [62 AD3d 980] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Olga Rosello et al., Respondents, v City of New York etal., Defendants, and Keyspan Energy N.Y.C. et al., Appellants. |
—[*1] Lawrence Rogak, LLP, Oceanside, N.Y. (Renee Breitner of counsel), for appellant GaetanoFontana. Friedman, Levy & Goldfarb, LLP, New York, N.Y. (Ira H. Goldfarb and David J. Kresmanof counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants Keyspan EnergyN.Y.C. and Gaetano Fontana separately appeal from an order of the Supreme Court, KingsCounty (Rothenberg, J.), dated March 7, 2008, which denied their respective motions forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with one bill of costs, and the motions forsummary judgment dismissing the complaint insofar as asserted against the appellants aregranted.
On January 4, 2002, at approximately 8:50 a.m., the plaintiff Olga Rosello (hereinafter theplaintiff) tripped and fell over a gas valve cap on the sidewalk of Fort Hamilton Parkway inBrooklyn, sustaining personal injuries. After the plaintiff and her husband, derivatively,commenced the present action, the defendant Keyspan Energy N.Y.C. (hereinafter Keyspan)moved for summary judgment dismissing the complaint insofar as asserted against it, and thedefendant Gaetano Fontana, the co-owner of an adjacent premises, moved for the same relief.The Supreme Court denied the motions. We reverse.
The appellants established their prima facie entitlement to judgment as a matter of law byshowing that the alleged defect in the sidewalk was trivial, nonactionable, and did not possessthe characteristics of a trap or nuisance (see Trincere v County of Suffolk, 90 NY2d 976[1997]; Shiles v Carillon Nursing &Rehabilitation Ctr., LLC, 54 AD3d 746 [2008]). The photographs of the sidewalk whichKeyspan submitted in support of its motion indicate that the elevation differential between thedefect and the surrounding sidewalk was slight (see Hawkins v Carter Community Hous. Dev. Fund Corp., 40 AD3d812 [2007]). In addition, considering the depth of the defect and its width, as well as thetime, place, and [*2]circumstances of the injury, the allegeddefect did not have the characteristics of a trap or snare (see Trincere v County ofSuffolk, 90 NY2d at 976). In opposition, the plaintiffs failed to raise a triable issue of fact(see CPLR 3212 [b]). Mastro, J.P., Skelos, Dickerson and Lott, JJ., concur.