| Aguayo v New York City Hous. Auth. |
| 2010 NY Slip Op 02494 [71 AD3d 926] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Gilbert Aguayo, Respondent, v New York City HousingAuthority, Appellant, et al., Defendant. |
—[*1] Bornstein & Emanuel, P.C. (Anita Nissan Yehuda, P.C., Roslyn Heights, N.Y., of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant New York City HousingAuthority appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated March31, 2009, which denied its motion for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantNew York City Housing Authority for summary judgment dismissing the complaint insofar asasserted against it is granted.
While attempting to step down from a lawn onto a parking lot on property owned by thedefendant New York City Housing Authority (hereinafter the NYCHA), the plaintiff allegedlywas injured when he tripped and fell over a crack in a concrete erosion guard. NYCHA movedfor summary judgment dismissing the complaint insofar as asserted against it on the ground,inter alia, that the defect was trivial as a matter of law and therefore not actionable. The SupremeCourt denied the motion. We reverse.
"[W]hether a dangerous or defective condition exists on the property of another so as tocreate liability ' "depends on the peculiar facts and circumstances of each case" and is generally aquestion of fact for the jury' " (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997],quoting Guerrieri v Summa, 193 AD2d 647, 647 [1993]; see Copley v Town of Riverhead, 70AD3d 623 [2010]). However, a property owner may not be held liable in damages for trivialdefects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stubhis or her toes, or trip (see Joseph vVillages at Huntington Home Owners Assn., Inc., 39 AD3d 481 [2007]; Outlaw v Citibank, N.A., 35 AD3d564 [2006]). In determining whether a defect is trivial as a matter of law, the court mustexamine all of the facts presented, "including the width, depth, elevation, irregularity andappearance of the defect along with the 'time, place and circumstance' of the injury"(Trincere v County of Suffolk, 90 NY2d at 978, quoting Caldwell v Village of Is.Park, 304 NY 268, 274 [1952]). Here, upon reviewing photographs of the crack andconsidering all other relevant factors, NYCHA [*2]established,prima facie, that the alleged defect was not actionable as it was trivial and did not possess thecharacteristics of a trap or nuisance (see Trincere v County of Suffolk, 90 NY2d 976[1997]; Copley v Town ofRiverhead, 70 AD3d 623 [2010]; Fisher v JRMR Realty Corp., 63 AD3d 677 [2009]; Rosello v City of New York, 62 AD3d980 [2009]; Pennella v 277 Bronx Riv. Rd. Owners, 309 AD2d 793 [2003]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Shiles v Carillon Nursing & Rehabilitation Ctr., LLC, 54 AD3d746 [2008]; Taussig v Luxury Carsof Smithtown, Inc., 31 AD3d 533 [2006]). Accordingly, the Supreme Court should havegranted NYCHA's motion for summary judgment dismissing the complaint insofar as assertedagainst it (see Copley v Town ofRiverhead, 70 AD3d 623 [2010]; Hawkins v Carter Community Hous. Dev. Fund Corp., 40 AD3d812 [2007]; D'Arco v Pagano,21 AD3d 1050 [2005]). Rivera, J.P., Florio, Angiolillo and Belen, JJ., concur.