| Vani v County of Nassau |
| 2010 NY Slip Op 07529 [77 AD3d 819] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Donna Vani et al., Appellants, v County of Nassau,Defendant, and Levittown Union Free School District No. 5,Respondent. |
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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Mahon, J.), dated July 27, 2009, which granted themotion of the defendant Levittown Union Free School District No. 5 for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantLevittown Union Free School District No. 5 for summary judgment dismissing the complaintinsofar as asserted against it is denied.
The plaintiff allegedly sustained personal injuries when she tripped and fell over a heightdifferential between two concrete slabs of a walkway leading to the entrance of the building ofthe defendant Levittown Union Free School District No. 5 (hereinafter the defendant). After theplaintiff commenced this action, the defendant moved for summary judgment dismissing thecomplaint insofar as asserted against it, contending that the alleged defect was trivial and notactionable. The Supreme Court granted the motion. We reverse.
"Although the issue of whether a dangerous or defective condition exists on property isgenerally one for the trier of fact, some defects are trivial and, therefore, not actionable" (Trumboli v Fifth Ave. Paving, 59AD3d 706, 707 [2009]; see Trincere v County of Suffolk, 90 NY2d 976 [1997]; James v Newport Gardens, Inc., 70AD3d 1002 [2010]; Pennella v 277 Bronx Riv. Rd. Owners, 309 AD2d 793 [2003]).In determining whether a defect is trivial, 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 the injury" (Trincere v County of Suffolk, 90 NY2d at978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]; see Fisher v JRMR Realty Corp., 63AD3d 677 [2009]). "[T]here is no 'minimal dimension test' or per se rule that a defect mustbe of a certain minimum height or depth in order to be actionable" (Trincere v County ofSuffolk, 90 NY2d at 977). Here, the defendant failed to make a prima facie showing that thealleged defect in the walkway was trivial and thus not actionable. The evidence submitted [*2]regarding the circumstances of the accident, including thedeposition testimony, raises triable issues of fact as to whether the alleged defect was trivial orconstituted a trap, snare, or nuisance (see Boxer v Metropolitan Transp. Auth., 52 AD3d 447 [2008]; Portanova v Kantlis, 39 AD3d 731[2007]; Mishaan v Tobias, 32 AD3d1000 [2006]). In light of the above, we need not review the sufficiency of the plaintiffs'opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Accordingly, the Supreme Court should have denied the defendant's motion for summaryjudgment dismissing the complaint insofar as asserted against it. Mastro, J.P., Covello,Dickerson and Lott, JJ., concur.