| Bolloli v Waldbaum, Inc. |
| 2010 NY Slip Op 01752 [71 AD3d 618] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Josephine Bolloli, Respondent, v Waldbaum, Inc., et al.,Appellants |
—[*1] Tantleff, Cohen & Tantleff, P.C., Brooklyn, N.Y. (Edward D. Tantleff of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Schmidt, J.), dated June 15, 2009, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On June 16, 2006, the plaintiff drove to a Waldbaum's supermarket to do some groceryshopping. The plaintiff alleged that after she parked, she exited her vehicle and was walking inthe parking lot towards the supermarket when she stepped in a pothole near the supermarket'sentrance, causing her to fall and sustain injuries. The plaintiff commenced this action againstWaldbaum, Inc., and later added its corporate parent, the Great Atlantic & Pacific Tea Company,as a defendant. The defendants moved for summary judgment dismissing the complaint on thegrounds that the alleged defect was trivial and, therefore, not actionable and that they did nothave notice of the alleged defect. The Supreme Court denied the defendants' motion. We affirm.
"The issue of whether a dangerous condition exists on real property depends on theparticular facts and circumstances of each case, and generally presents a question of fact for thejury" (Hahn v Wilhelm, 54 AD3d896, 898 [2008]; see Trincere v County of Suffolk, 90 NY2d 976 [1997]). However,injuries resulting from trivial defects are not actionable (see Hahn v Wilhelm, 54 AD3dat 896; Portanova v Kantlis, 39AD3d 731, 732 [2007]; Herring vLefrak Org., 32 AD3d 900 [2006]).
In determining whether a defect is trivial, a court must take into account "the facts presented,including 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 at978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]; see Boxer v Metropolitan Transp.Auth., 52 AD3d 447, 448 [2008]; Maxson v Brentwood Union Free School Dist., 31 AD3d 506, 507[2006]; Fairchild v J. Crew Group,Inc., 21 AD3d 523, 524 [2005]; Corrado v City of New York, 6 AD3d 380 [2004]). In consideringthe various factors, the Court of Appeals has made it clear that "there is no 'minimal dimensiontest' [*2]or per se rule that a defect must be of a certain minimumheight or depth in order to be actionable" (Trincere v County of Suffolk, 90 NY2d at977), and that "a mechanistic disposition of a case based exclusively on the dimension of the. . . defect is unacceptable" (id. at 977-978).
Furthermore, "[a]n owner of premises cannot be held liable for injuries caused by anallegedly defective condition unless the plaintiff establishes that the owner either created or hadactual or constructive notice of the condition" (Curiale v Sharrotts Woods, Inc., 9 AD3d 473, 474-475 [2004];see Battaglia v Toys "R" Us, 271 AD2d 627, 629 [2000]; Gordon v AmericanMuseum of Natural History, 67 NY2d 836, 837 [1986]).
To permit a finding of constructive notice, "a condition must be visible and apparent, andmust exist for a sufficient length of time before the accident to permit the defendant to discoverand remedy it" (Deveau v CF Galleriaat White Plains, LP, 18 AD3d 695, 695 [2005]; see Gordon v American Museum ofNatural History, 67 NY2d at 837; Stone v Long Is. Jewish Med. Ctr., 302 AD2d 376[2003]). Furthermore, "[a] photograph may be used to prove constructive notice of an allegeddefect shown in the photograph if it was taken reasonably close to the time of the accident andthere is testimony that the condition at the time of the accident was substantially as shown in thephotographs" (Lustenring v 98-100Realty, 1 AD3d 574, 577 [2003]).
Here, the defendants failed to make a prima facie showing of entitlement to judgment as amatter of law. Contrary to the defendants' contention, the evidence submitted in support of theirmotion for summary judgment, including the deposition testimony of the plaintiff and the store'smanager at the time of the accident, as well as various photographs of the area where the plaintifffell, were insufficient to demonstrate, as a matter of law, that the alleged defect in the parking lotwas trivial and, therefore, not actionable (see Serano v New York City Hous. Auth., 66 AD3d 867 [2009]; Ricker v Board of Educ. of Town of HydePark, 61 AD3d 735 [2009]).
Moreover, the defendants failed to establish, as a matter of law, that they lacked constructivenotice of the alleged defect. The plaintiff testified at her deposition that she had seen theparticular pothole that caused her to fall two months prior to her accident. The store manageralso testified at his deposition that he performed inspections on a regular basis of the parking lot,including the area directly in front of the store where the plaintiff fell. Also, the photographs inthe record show a noticeable pothole in the area where the plaintiff fell. Thus, triable issues offact exist as to whether the defendants had constructive notice of the alleged defect.
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Fisher, J.P., Florio, Belen and Hall, JJ., concur.