| Losito v JP Morgan Chase & Co. |
| 2010 NY Slip Op 03417 [72 AD3d 1033] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Deborah Losito, Respondent, v JP Morgan Chase and Co.,Appellant. |
—[*1] Salenger, Sack, Schwartz & Kimmel, LLP, New York, N.Y. (Gregory S. Gennarelli ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Nassau County (Iannacci, J.), entered November 9, 2009, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
On June 8, 2007, a clear, sunny day, the plaintiff was exiting the defendant's premises whenshe allegedly tripped and fell. The plaintiff attributed her fall to a crack on a concrete platformstep. The defendant moved for summary judgment dismissing the complaint on the ground that,as a matter of law, the crack was a trivial defect. The Supreme Court denied the motion.
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, 977 [1997]). However, a property owner may not be heldliable for trivial defects, not constituting a trap or nuisance (id.; see Ambroise v New York City Tr.Auth., 33 AD3d 573, 574 [2006]). In determining whether a defect is trivial, the courtmust examine 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, the defendant established, prima facie, that the allegeddefect in the step was trivial and nonactionable and did not possess the characteristics of a trap ornuisance (see Fisher v JRMR RealtyCorp., 63 AD3d 677, 678 [2009]; Shiles v Carillon Nursing & Rehabilitation Ctr., LLC, 54 AD3d746 [2008]). Although the plaintiff, in her deposition testimony, described the width of thecrack as 1½ inches wide, photographs of the crack, which she confirmed fairly andaccurately represented the accident site, indicate that the width was slight and that there was noelevation differential (see Fisher v JRMR Realty Corp., 63 AD3d at 678; Shiles vCarillon Nursing & Rehabilitation Ctr., LLC, 54 AD3d at 746). Further, the plaintiff'sdeposition testimony established that the accident occurred during daylight hours on a clear daywith nothing obstructing her view (see Shiles v Carillon Nursing & Rehabilitation [*2]Ctr., LLC, 54 AD3d at 746; Hawkins v Carter Community Hous. Dev.Fund Corp., 40 AD3d 812, 813 [2007]). In opposition, the plaintiff failed to raise atriable issue of fact (see Hawkins v Carter Community Hous. Dev. Fund Corp., 40 AD3dat 813; Dick v Gap, Inc., 16 AD3d615 [2005]). Accordingly, the Supreme Court should have granted the defendant's motionfor summary judgment dismissing the complaint. Mastro, J.P., Dickerson, Belen and Chambers,JJ., concur.