| Richardson v JAL Diversified Mgt. |
| 2010 NY Slip Op 04356 [73 AD3d 1012] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Lendell Richardson, Respondent, v JAL DiversifiedManagement, Appellant. |
—[*1]
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Ambrosio, J.), dated October 5, 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.
The plaintiff was walking along a brick-paved island in a parking lot managed by thedefendant, when he tripped and fell over a metal strip separating the brick surface from the dirtsurface of a tree well. The defendant moved for summary judgment dismissing the complaintupon the ground, inter alia, that the defect was trivial as a matter of law and therefore notactionable. The Supreme Court denied the motion. We reverse.
As a preliminary matter, we note that, under the circumstances of this case, the defendantdemonstrated good cause for the delay in filing its motion for summary judgment, since the noteof issue was filed while there was significant discovery outstanding (see CPLR 3212 [a];Brill v City of New York, 2 NY3d648 [2004]; McArdle v 123Jackpot, Inc., 51 AD3d 743, 745 [2008]; Sclafani v Washington Mut., 36 AD3d 682 [2007]).
"[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 Aguayo v New York City Hous.Auth., 71 AD3d 926 [2010]; Copley v Town of Riverhead, 70 AD3d 623 [2010]). However, aproperty owner may not be held liable in damages for trivial defects, not constituting a trap ornuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Aguayo v New York City Hous.Auth., 71 AD3d 926 [2010]; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d481 [2007]; Outlaw v Citibank,N.A., 35 AD3d 564 [2006]). In determining whether a defect is trivial as a matter oflaw, the court must examine all of the facts presented,[*2]"including the width, depth, elevation, irregularity and appearanceof the defect along with the 'time, place and circumstance' of the injury" (Trincere v Countyof Suffolk, 90 NY2d at 978, quoting Caldwell v Village of Is. Park, 304 NY 268,274 [1952]). Here, reviewing photographs of the metal strip and considering all other relevantfactors, we find that the defendant established, prima facie, that the alleged defect was notactionable as it was trivial and did not possess the characteristics of a trap or nuisance (seeTrincere v County of Suffolk, 90 NY2d 976 [1997]; Aguayo v New York City Hous. Auth., 71 AD3d 926 [2010]; Copley v Town of Riverhead, 70AD3d 623 [2010]; Fisher v JRMRRealty Corp., 63 AD3d 677 [2009]; Rosello v City of New York, 62 AD3d 980 [2009]). In opposition,the plaintiff failed to raise a triable issue of fact (see Shiles v Carillon Nursing & Rehabilitation Ctr., LLC, 54 AD3d746 [2008]). Accordingly, the Supreme Court should have granted the defendant's motionfor summary judgment dismissing the complaint (see Aguayo v New York City Hous. Auth., 71 AD3d 926 [2010];Copley v Town of Riverhead, 70AD3d 623 [2010]). Covello, J.P., Dickerson, Eng and Austin, JJ., concur.