| Koznesoff v First Hous. Co., Inc. |
| 2010 NY Slip Op 05366 [74 AD3d 1027] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Ann Koznesoff, Respondent, v First Housing Company,Inc., Appellant. |
—[*1] Steven Siegel, P.C., Kew Gardens, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (Flaherty, J.), entered October 23, 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 allegedly slipped and fell from the first step below the landing of an exteriorstaircase at a premises owned by the defendant. The plaintiff alleged that there was a chip in thesubject step, which was made out of mortar and pebbly stones. The defendant moved forsummary judgment, contending that the alleged defect at issue was trivial and not actionable.The Supreme Court denied the motion. We reverse.
Although the issue of whether a dangerous or defective condition exists on propertygenerally is one for the trier of fact, some defects are trivial, not constituting a trap or nuisanceand, therefore, not actionable (seeTrumboli v Fifth Ave. Paving, 59 AD3d 706 [2009]; see Trincere v County ofSuffolk, 90 NY2d 976 [1997]; Rosello v City of New York, 62 AD3d 980 [2009]; Pennella v277 Bronx Riv. Rd. Owners, 309 AD2d 793 [2003]). In determining whether a defect istrivial, the court must examine all of the facts presented, including the "width, depth, elevation,irregularity, and appearance of the defect, along with the 'time, place, and circumstance' of theinjury" (Trincere v County of Suffolk, 90 NY2d at 978, quoting Caldwell v Villageof Is. Park, 304 NY 268, 274 [1952]).
Here, the defendant met its burden of establishing entitlement to judgment as a matter of lawby submitting photographs and the deposition testimony of the plaintiff which revealed that thealleged defect, which did not have any of the characteristics of a trap or nuisance, was trivialand, therefore, not actionable (seeAguayo v New York City Hous. Auth., 71 AD3d 926 [2010]; Shiles v Carillon Nursing & RehabilitationCtr., LLC, 54 AD3d 746 [2008]). In opposition, the plaintiff failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Fisher, J.P., Santucci,Miller and Lott, JJ., concur.