| Milewski v Washington Mut., Inc. |
| 2011 NY Slip Op 07400 [88 AD3d 853] |
| October 18, 2011 |
| Appellate Division, Second Department |
| Annemarie Milewski et al., Appellants, v WashingtonMutual, Inc., et al., Respondents, et al., Defendants. |
—[*1] Cullen and Dykman LLP, Brooklyn, N.Y. (Wendy Tobias of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.),dated July 27, 2010, as granted that branch of the motion of the defendants Washington Mutual,Inc., and Washington Mutual Bank which was for summary judgment dismissing the complaintinsofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
On September 1, 2007, the plaintiff Annemarie Milewski (hereinafter the injured plaintiff)allegedly was injured when she tripped and fell as the result of an alleged defect in the parkinglot of a bank branch of the defendants Washington Mutual, Inc., and Washington Mutual Bank(hereinafter together the Bank defendants). The alleged defect consisted, according to theplaintiffs, of a height differential of between one and two inches between the asphalt surface ofthe parking lot and the concrete framing of a metal grate that straddled the parking lot and thepublic sidewalk adjoining the lot. There was no height differential between the concrete framingand the sidewalk, but the asphalt surface of the parking lot sloped downward, creating thedifferential just inside the lot. The injured plaintiff and her husband, suing derivatively,commenced this action against the Bank defendants and their landlord to recover damages fortheir injuries. The Bank defendants moved, inter alia, for summary judgment dismissing thecomplaint insofar as asserted against them, contending that they owed no duty to the injuredplaintiff inasmuch as their lease with the property owner placed the obligation for structuralrepairs on the landlord and, in any event, that the alleged defect was trivial and therefore notactionable. The Supreme Court granted that branch of the Bank defendants' motion on the groundthat the Bank defendants did not lease the parking lot from the landlord and were not inpossession or control of the parking lot, and that they therefore owed no duty to the injuredplaintiff. In light of this holding, the court declined to consider the Bank defendants' argumentthat the defect was trivial. We affirm, but on the ground not addressed by the Supreme Court.
The possessor of real property has a duty under the common law to keep that property [*2]reasonably safe (see Basso v Miller, 40 NY2d 233, 241[1976]; Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 11 [2011]; cf.Walsh v Super Value, Inc., 76 AD3d 371, 375 [2010]). While a landlord and tenant arefree to agree with each other as to which party, as between them, will have the contractualobligation to make repairs, the tenant may not contract away a duty in tort that the law imposeson it with respect to third parties (seeReimold v Walden Terrace, Inc., 85 AD3d 1144 [2011]; Elbadawi v Myrna & Mark Pizzeria,Inc., 70 AD3d 627, 627-628 [2010]; Skerritt v Jarrett Constr. Co., 224 AD2d299, 300 [1996]; McNelis v Doubleday Sports, 191 AD2d 619, 620 [1993]; Chadis vGrand Union Co., 158 AD2d 443, 444 [1990]; cf. Hoberman v Kids "R" Us, 187AD2d 187 [1993]). This duty does not depend on the classification of the defect as transient,structural, or nonstructural.
Here, contrary to the Supreme Court's determination, the Bank defendants leased not only thebuilding, but the parking lot as well. Thus, the Bank defendants had possession and control overthe parking lot, and they owed the injured plaintiff a duty to keep it reasonably safe (seeAlnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 16-17 [2011]; Chadis v Grand Union Co., 158 AD2d at 444-445).
In light of its holding that the Bank defendants did not owe the injured plaintiff a duty, theSupreme Court did not address the argument, now urged by the Bank defendants as an alternativeground for affirmance, that the alleged defect was trivial and therefore not actionable (seeParochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]; Jun Suk Seo v Walsh, 82 AD3d710 [2011]). Since that issue was argued before the Supreme Court, and has been briefed bythe parties before us, we address it and find, as a matter of law, that the alleged defect was trivialand therefore not actionable.
Generally, whether a dangerous or defective condition exists depends on the particular factsof each case, and is properly a question of fact for the jury unless the defect is trivial as a matterof law (see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Fisher v JRMR Realty Corp., 63 AD3d677 [2009]; DeLaRosa v City ofNew York, 61 AD3d 813 [2009]). Property owners (and tenants) may not be held liablefor trivial defects, not constituting a trap or nuisance, over which a pedestrian might merelystumble, stub his or her toes, or trip (see Trincere v County of Suffolk, 90 NY2d at 977;DeLaRosa v City of New York, 61 AD3d at 813; Shiles v Carillon Nursing & Rehabilitation Ctr., LLC, 54 AD3d746 [2008]). In determining whether a defect is trivial as a matter of law, the court mustexamine all of the facts presented, including the "width, depth, elevation, irregularity andappearance of the defect along with the 'time, place and circumstance' of the injury" (Trincerev County of Suffolk, 90 NY2d at 978, quoting Caldwell v Village of Is. Park, 304NY 268, 274 [1952]; see Fontana vWinery, 84 AD3d 863, 864-865 [2011]). There is no "minimal dimension test" or "perse rule" that the condition must be of a certain height or depth in order to be actionable (seeTrincere v County of Suffolk, 90 NY2d at 977; Ricker v Board of Educ. of Town of Hyde Park, 61 AD3d 735[2009]). Here, the evidence that the Bank defendants submitted in support of their motion,including several photographs of the claimed defect, established prima facie that, as a matter oflaw, under all the circumstances, including the weather conditions on the day of the injuredplaintiff's fall, her unobstructed view of the claimed defect, and the appearance and location ofthe height differential, the claimed defect was trivial and therefore not actionable (see Fisherv JRMR Realty Corp., 63 AD3d at 678; Rosello v City of New York, 62 AD3d 980, 981 [2009]; Shiles v Carillon Nursing & RehabilitationCtr., LLC, 54 AD3d 746 [2008]; Hawkins v Carter Community Hous. Dev. Fund Corp., 40 AD3d812, 813 [2007]; Bekritsky vTACS-4, Inc., 27 AD3d 680, 681 [2006]; D'Arco v Pagano, 21 AD3d 1050, 1051 [2005]). In opposition, theplaintiffs failed to raise a triable issue of fact (see Fisher v JRMR Realty Corp., 63 AD3dat 678; Rosello v City of New York, 62 AD3d at 981). Accordingly, the Bank defendantswere entitled to summary judgment dismissing the complaint insofar as asserted against them.Rivera, J.P., Balkin, Hall and Cohen, JJ., concur.