| Fisher v JRMR Realty Corp. |
| 2009 NY Slip Op 04378 [63 AD3d 677] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Linda Fisher, Appellant, v JRMR Realty Corp.,Respondent, et al., Defendant. (And a Third-Party Action.) |
—[*1] Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), forrespondent.
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, Nassau County (Palmieri, J.), dated April7, 2008, as granted that branch of the motion of the defendant JRMR Realty Corp. which was forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly fell due to an uneven sidewalk abutting premises owned by thedefendant JRMR Realty Corp. (hereinafter JRMR). There was a tree near the curb of thesidewalk, and the plaintiff fell in close proximity to the tree. The plaintiff stated at her depositionthat she traversed this area on a regular basis and never noticed the uneven condition of thesidewalk before she fell. The plaintiff, who was looking straight ahead prior to the fall, onlynoticed the alleged uneven condition after she fell. JRMR moved for summary judgment,contending that the sidewalk defect was trivial and therefore not actionable. The Supreme Courtgranted the motion. We affirm the order insofar as appealed from.
Generally, the issue of whether a dangerous or defective condition exists depends on theparticular facts of each case, and is properly a question of fact for the jury (see Trincere vCounty of Suffolk, 90 NY2d 976 [1997]; Hawkins v Carter Community Hous. Dev. Fund Corp., 40 AD3d812 [2007]; Riser v New York City Hous. Auth., 260 AD2d 564 [1999]). Indetermining whether a defect is trivial, the court [*2]mustexamine all of the facts presented, including the "width, depth, elevation, irregularity andappearance of the defect, along with the 'time, place, and circumstances' of the injury"(Trincere v County of Suffolk, 90 NY2d 976, 978 [1997], quoting Caldwell v Villageof Is. Park, 304 NY 268, 274 [1952]).
Here, based upon the photographs of the sidewalk, which the plaintiff confirmed fairly andaccurately represented the accident site, and the plaintiff's description of the circumstancessurrounding the accident, JRMR established, prima facie, that the alleged defect was trivial andtherefore not actionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]). Inopposition to the motion, the plaintiff failed to raise a triable issue of fact (see Shiles v Carillon Nursing &Rehabilitation Ctr., LLC, 54 AD3d 746 [2008]; Dick v Gap, Inc., 16 AD3d 615 [2005]). Rivera, J.P., Santucci,Chambers and Hall, JJ., concur. [See 2008 NY Slip Op 31058(U).]