| Gafter v Buffalo Med. Group, P.C. |
| 2011 NY Slip Op 04902 [85 AD3d 1605] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| Estelle Gafter, Respondent, v Buffalo Medical Group, P.C., et al.,Appellants. |
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Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered July15, 2010 in a personal injury action. The order denied the motion of defendants for summaryjudgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustainedwhen she allegedly tripped and fell on the sidewalk in front of property owned by defendantTown of Amherst Industrial Development Agency and leased by defendant Buffalo MedicalGroup, P.C. According to plaintiff, her toe hit the divider between cement slabs, causing her tofall and sustain injuries. Supreme Court properly denied defendants' motion for summaryjudgment dismissing the complaint. " 'Whether a particular height difference between sidewalkslabs constitutes a dangerous or defective condition depends on the peculiar facts andcircumstances of each case, including the width, depth, elevation, irregularity, and appearance ofthe defect as well as the time, place, and circumstances of the injury' " (Cuebas v Buffalo Motor Lodge/Best ValueInn, 55 AD3d 1361, 1362 [2008]; see Trincere v County of Suffolk, 90 NY2d976, 977-978 [1997]). "Based on the record before us, we conclude that defendant[s] failed tomeet [their] burden of establishing as a matter of law that the alleged defect 'was too trivial toconstitute a dangerous or defective condition' " (Cuebas, 55 AD3d at 1362; see Schaaf v Pork Chop, Inc., 24 AD3d1277 [2005]; Stewart v 7-Eleven, Inc., 302 AD2d 881 [2003]). "[T]here is no'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depthin order to be actionable" (Trincere, 90 NY2d at 977), and we conclude under thecircumstances of this case that there is an issue of fact whether the alleged defect is indeedactionable.
We further conclude that defendants failed to establish their entitlement to judgment as amatter of law by demonstrating that the cause of the fall was speculative (see Nolan v Onondaga County, 61AD3d 1431 [2009]; cf. McGill vUnited Parcel Serv., Inc., 53 AD3d 1077 [2008]). Inasmuch as defendants failed to meettheir initial burden on the motion, we need not consider the sufficiency of plaintiff's opposing[*2]papers (see generally Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]). Present—Smith, J.P., Carni, Lindley and Gorski, JJ.