| Grosskopf v 8320 Parkway Towers Corp. |
| 2011 NY Slip Op 07201 [88 AD3d 765] |
| October 11, 2011 |
| Appellate Division, Second Department |
| Kathleen Grosskopf, Respondent, v 8320 Parkway TowersCorp. et al., Appellants. |
—[*1] Edward W. Armstrong P.C. (John V. Decolator, Garden City, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Knipel, J.), dated October 8, 2010, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
During the afternoon of March 25, 2006, the plaintiff allegedly was injured when she fellwhile descending the lobby stairs of her Brooklyn apartment building, which was owned by thedefendant 8320 Parkway Towers Corp., and managed by the defendant Superior Realty Group,LLC. The plaintiff attributed her fall to a chip in the second step from the bottom of the five-stepmarble stairway. The defendants moved for summary judgment dismissing the complaint on theground that, as a matter of law, the chip was a nonactionable trivial defect. The Supreme Courtdenied the 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 Dery v K Mart Corp.,84 AD3d 1303, 1304 [2011]). However, some defects are trivial and, therefore, notactionable as a matter of law (see Trincere v County of Suffolk, 90 NY2d at 977; Fontana v Winery, 84 AD3d 863,864 [2011]; Trumboli v Fifth Ave.Paving, 59 AD3d 706 [2009]). For a court to determine whether a defect is trivial as amatter of law, it 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 theinjury (see Trincere v County of Suffolk, 90 NY2d at 978; Losito v JP Morgan Chase & Co., 72AD3d 1033, 1034 [2010]; Aguayov New York City Hous. Auth., 71 AD3d 926, 927 [2010]; Pennella v 277 BronxRiv. Rd. Owners, 309 AD2d 793, 794 [2003]).
Here, the defendants met their prima facie burden of establishing their entitlement [*2]to judgment as a matter of law by submitting, inter alia, theplaintiff's deposition testimony and photographs of the subject staircase. The plaintiff testified ather deposition that she used the subject staircase on a daily basis and had never observed anychip in the steps, that the area where she fell was well-lit, that the stairs were free of liquid ordebris, and that nothing obstructed her view as she descended the stairs. In addition, the plaintiffhad used the subject stairs without incident shortly before her fall. Regarding the alleged defect,the evidence revealed that it consisted of a chip measuring less than two inches wide, locatedalmost entirely on the nosing of the second to last step from the bottom, and not on the walkingsurface. Upon an examination of all of the facts presented, the alleged defect did not possess thecharacteristics of a trap or nuisance, was trivial and, therefore, not actionable (see Koznesoff v First Hous. Co., Inc.,74 AD3d 1027, 1028 [2010]; Losito v JP Morgan Chase & Co., 72 AD3d at 1034;Chillemi v National BirchwoodCorp., 16 AD3d 612, 612-613 [2005]; Guerriero v Jand, 57 AD3d 365, 366 [2008]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]; Koznesoff v First Hous. Co., Inc., 74 AD3d at 1028;Guerriero v Jand, 57 AD3d at 366). Since the expert affidavit submitted by the plaintiffwas speculative, conclusory, and unsupported by any evidence in the record, it was insufficient toraise a triable issue of fact (see Micciolav Sacchi, 36 AD3d 869, 871 [2007]; Tomol v Sbarro, Inc., 306 AD2d 461[2003]).
The plaintiff's remaining contentions either are without merit or have been renderedacademic by our determination.
Accordingly, the Supreme Court should have granted the defendants' motion for summaryjudgment dismissing the complaint. Dillon, J.P., Belen, Roman and Miller, JJ., concur.