| Dery v K Mart Corp. |
| 2011 NY Slip Op 04625 [84 AD3d 1303] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Carol Dery et al., Respondents, v K Mart Corporation etal., Appellants. |
—[*1] Lynch Rowin, LLP, New York, N.Y. (Karen L. Kirshenbaum of counsel), for appellant KMart Corporation. Panteris & Panteris, LLP, Bayside, N.Y. (George Panteris of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant Serota BrooktownIII, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, SuffolkCounty (Mayer, J.), entered December 22, 2009, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and the defendant KMart Corporation separately appeals, as limited by its brief, from so much of the same order asdenied its cross motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against it.
Ordered that the order is reversed, on the law, with one bill of costs, and the motion of thedefendant Serota Brooktown III, LLC, for summary judgment dismissing the complaint and allcross claims insofar as asserted against it and the cross motion of the defendant K MartCorporation for summary judgment dismissing the complaint and all cross claims insofar asasserted against are granted.
On June 11, 2002, while stepping onto a curb at a shopping center owned by the defendantSerota Brookstone III, LLC (hereinafter Serota), in front of a store operated by the defendant KMart Corporation (hereinafter K Mart), the plaintiff Carol Dery (hereinafter the injured plaintiff)allegedly was injured when she tripped and fell over a chip in the curb. Serota moved forsummary judgment on the ground, inter alia, that the defect was trivial as a matter of law and,therefore not actionable. K Mart cross-moved for similar relief on the same basis, as well as uponother grounds. The Supreme Court denied the motion and cross motion. We reverse.
"[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] [internal quotation marksomitted]; see Aguayo v New York City Hous. Auth., 71 AD3d 926 [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 (seeAguayo v New York City Hous. Auth., 71 AD3d at 927; Joseph v Villages at HuntingtonHome Owners Assn., Inc., 39 AD3d 481 [2007]; Outlaw v Citibank, N.A., 35 AD3d564 [2006]). In determining whether a defect is trivial as a matter of law, the court must examineall of the facts presented, "including the width, depth, elevation, irregularity and appearance ofthe defect along with the 'time, place and circumstance' of the injury" (Trincere v County ofSuffolk, 90 NY2d at 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274[1952]; see Aguayo v New York City Hous. Auth., 71 AD3d 926 [2010]).
Here, upon reviewing photographs of the chip and considering all other relevant factors,including the injured plaintiff's deposition testimony, we conclude that K Mart and Serotaestablished, prima facie, that the alleged defect was not actionable as it was trivial and did notpossess the characteristics of a trap or nuisance (see Trincere v County of Suffolk, 90NY2d at 977-978; Aguayo v New York City Hous. Auth., 71 AD3d at 927). Inopposition, the plaintiffs failed to raise a triable issue of fact (see Shiles v Carillon Nursing &Rehabilitation Ctr., LLC, 54 AD3d 746 [2008]).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court should have granted both the motion of Serota and the crossmotion of K Mart for summary judgment dismissing the complaint and all cross claims insofar asasserted against them. Angiolillo, J.P., Dickerson, Eng and Belen, JJ., concur.