| Delaney v Town Sports Intl. |
| 2011 NY Slip Op 06994 [88 AD3d 635] |
| October 4, 2011 |
| Appellate Division, Second Department |
| Joseph Delaney, Respondent, v Town Sports International,Doing Business as New York Sports Club, et al., Appellants. |
—[*1] O'Leary & Spero, Staten Island, N.Y. (Maria D. Spero of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from so much ofan order of the Supreme Court, Richmond County (Maltese, J.), dated January 25, 2011, asdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when he fell over a moveable wooden platform which hadbeen placed on the tile floor of a sauna located within the defendants' premises. The platform was1½ inches off the floor with a half-inch lip or overhang, and was located approximately9½ inches from the sauna entrance door. The defendants moved for summary judgmentcontending, inter alia, that the platform did not constitute a defective condition or, alternatively,that any alleged defect was trivial in nature. The Supreme Court denied the motion. We affirm.
"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]). Although some defects are trivial and, therefore, not actionable as amatter of law (see Trincere v County of Suffolk, 90 NY2d at 977; Vani v County ofNassau, 77 AD3d at 819), "[i]n determining whether a defect is trivial as a matter of law, acourt [*2]must examine all of the facts presented, including thewidth, depth, elevation, irregularity, and appearance of the defect, along with the time, place, andcircumstances of the injury" (Perez v 655 Montauk, LLC, 81 AD3d at 619-620; seeTrincere v County of Suffolk, 90 NY2d at 977-978; Sabino v 745 64th Realty Assoc., LLC, 77 AD3d 722 [2010]).
The defendants failed to establish their prima facie entitlement to judgment as a matter oflaw on the basis that the wooden platform did not constitute a defective condition (see Mayo v Santis, 74 AD3d 470[2010]; Argenio v Metropolitan Transp. Auth., 277 AD2d 165 [2000]; see also Mishaan v Tobias, 32 AD3d1000 [2006]) or that any defect was trivial in nature (see Trincere v County ofSuffolk, 90 NY2d 976 [1997]; DePascale v E&A Constr. Corp., 74 AD3d 1128, 1131 [2010]; Richardson v JAL Diversified Mgt., 73AD3d 1012 [2010]; Hahn vWilhelm, 54 AD3d 896 [2008]). Since the movants failed to establish their entitlementto judgment as a matter of law, we need not consider the sufficiency of the opposing papers (see Kimber Mfg., Inc. v Hanzus, 56AD3d 615 [2008]). Accordingly, the Supreme Court properly denied the defendants' motionfor summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Mastro,J.P., Florio, Eng and Sgroi, JJ., concur. [Prior Case History: 2011 NY Slip Op30191(U).]