| Fontana v Winery |
| 2011 NY Slip Op 03995 [84 AD3d 863] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Barbara Fontana et al., Appellants, v Benmarl Winery etal., Respondents, et al., Defendant. (And a Third-Party Action.) |
—[*1] Eustace & Marquez, White Plains, N.Y. (Rose M. Cotter of counsel), for respondentsBenmarl Winery and Victory Enterprises of Dutchess, LLC. Leonard Kessler, Slate Hill, N.Y., for respondent Bridge Creek Catering, LLC.
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, aslimited by their brief, from so much of (1) an order of the Supreme Court, Dutchess County(Pagones, J.), dated April 22, 2010, as granted that branch of the motion of the defendantsBenmarl Winery and Victory Enterprises of Dutchess, LLC, which was for summary judgmentdismissing the complaint insofar as asserted against them, and (2) an order of the same courtdated August 13, 2010, as granted that branch of the motion of the defendant Bridge CreekCatering, LLC, which was for summary judgment dismissing the complaint insofar as assertedagainst it.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs to thedefendants appearing separately and filing separate briefs.
The plaintiff Barbara Fontana (hereinafter the injured plaintiff) alleges she was injured whenshe slipped and fell on a raised mound of gravel that she felt but never saw while attending awedding held at the defendant Benmarl Winery, which was catered by the defendant BridgeCreek Catering, LLC (hereinafter Bridge Creek). Immediately after the injured plaintiff fell, herhusband, the plaintiff Theodore Fontana, looked at the ground and saw "loose gravel" andobserved that the "ground was shuffled." The injured plaintiff, with her husband suingderivatively, commenced this action against, among others, Benmarl Winery, Victory Enterprisesof Dutchess, LLC (hereinafter together the Winery), and Bridge Creek, to recover damages forpersonal injuries. The Winery and Bridge Creek (hereinafter together the defendants) separatelymoved, inter alia, for summary judgment dismissing the complaint insofar as asserted againstthem. The defendants alleged, among other things, that they did not have actual or constructivenotice of the alleged hazard, nor did they create the alleged hazard and, in any event, the allegedhazard was trivial and nonactionable as a matter of law. In the orders appealed from, the SupremeCourt, inter alia, granted the defendants' motions on the ground that each of the defendants hadestablished, prima facie, that they had no notice of, and did not create, the alleged hazard and, inopposition, the plaintiffs failed to raise a [*2]triable issue of fact.The plaintiffs appeal. We affirm the orders insofar as appealed from, but on a different ground.
"Whether a dangerous or defective condition exists on the property of another so as to createliability depends on the circumstances of each case and is generally a question of fact for thejury" (Perez v 655 Montauk, LLC,81 AD3d 619, 619 [2011]; see Trincere v County of Suffolk, 90 NY2d 976, 977[1997]; Vani v County of Nassau,77 AD3d 819 [2010]). However, some defects are so trivial as to be not actionable as amatter of law (see Trincere v County of Suffolk, 90 NY2d at 977; Vani v County ofNassau, 77 AD3d at 819). "In determining whether a defect is trivial as a matter of law, acourt must examine all of the facts presented, including the width, depth, elevation, irregularity,and appearance of the defect, along with the time, place, and circumstances of the injury"(Perez v 655 Montauk, LLC, 81 AD3d at 619-620; see Trincere v County ofSuffolk, 90 NY2d at 977-978; Sabino v 745 64th Realty Assoc., LLC, 77 AD3d 722 [2010]).
The defendants established, prima facie, their entitlement to judgment as a matter of law onthe ground that the alleged dangerous condition was trivial as a matter of law (see Trincere vCounty of Suffolk, 90 NY2d 976 [1997]; DePascale v E&A Constr. Corp., 74 AD3d 1128, 1131 [2010]; Richardson v JAL Diversified Mgt., 73AD3d 1012 [2010]). In opposition, the plaintiffs failed to raise a triable issue of fact (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In light of our determination, we need not reach the parties' remaining contentions. Mastro,J.P., Balkin, Leventhal and Belen, JJ., concur.