| Schenpanski v Promise Deli, Inc. |
| 2011 NY Slip Op 07625 [88 AD3d 982] |
| October 25, 2011 |
| Appellate Division, Second Department |
| John Schenpanski et al., Appellants, v Promise Deli, Inc.,et al., Respondents. |
—[*1] Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael M. Burkart of counsel), forrespondent Promise Deli, Inc. Robert J. Cava P.C., West Babylon, N.Y., for respondent Cliff Realty Corp.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from anorder of the Supreme Court, Nassau County (Diamond, J.), entered March 10, 2010, and (2), aslimited by their brief, from so much of an amended order of the same court entered April 19,2010, as granted the motion of the defendant Cliff Realty Corp. for summary judgmentdismissing the complaint insofar as asserted against it and, in effect, searched the record andawarded summary judgment to the defendant Promise Deli, Inc., dismissing the complaintinsofar as asserted against it.
Ordered that the appeal from the order entered March 10, 2010, is dismissed, as that orderwas superseded by the amended order entered April 19, 2010; and it is further,
Ordered that the amended order entered April 19, 2010, is affirmed insofar as appealed from;and it is further,
Ordered that one bill of costs is awarded to the respondents.
The injured plaintiff allegedly tripped and fell over a raised manhole cover in the parking lotof premises owned by the defendant Cliff Realty Corp. (hereinafter Cliff Realty), and leased tothe defendant Promise Deli, Inc. (hereinafter Promise Deli). The Supreme Court granted themotion of Cliff Realty for summary judgment dismissing the complaint insofar as assertedagainst it and, upon searching the record, awarded summary judgment to Promise Deli, on theground that the alleged defect was trivial and, thus, not actionable. We affirm.
Generally, the issue of whether a dangerous or defective condition exists depends on theparticular facts of each case, and is properly a question of fact for the jury (see Copley v Town [*2]of Riverhead, 70 AD3d 623 [2010]). However, a propertyowner may not be held liable in damages for trivial defects, not constituting a trap or nuisance,over which a pedestrian might merely stumble, stub his or her toes, or trip (see Richardson v JAL DiversifiedMgt., 73 AD3d 1012 [2010]; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d481 [2007]). In determining whether a defect is trivial, the court must examine all of thefacts presented, including the "width, depth, elevation, irregularity and appearance of the defectalong with the 'time, place and circumstance' of the injury" (Trincere v County ofSuffolk, 90 NY2d 976, 978 [1997], quoting Caldwell v Village of Is. Park, 304 NY268, 274 [1952]; see Trampakoulous vIndependent Coach Bus Co., 18 AD3d 739 [2005]). "[T]here is no 'minimal dimensiontest' or per se rule that a defect must be of a certain minimum height or depth in order to beactionable" (Trincere v County of Suffolk, 90 NY2d at 977). Photographs which fairlyand accurately represent the accident site may be used to establish that a defect is trivial and notactionable (see Aguayo v New YorkCity Hous. Auth., 71 AD3d 926 [2010]; Fisher v JRMR Realty Corp., 63 AD3d 677 [2009]; Outlaw v Citibank, N.A., 35 AD3d564 [2006]; Maiello v EastchesterUnion Free School Dist., 8 AD3d 536 [2004]). Here, upon reviewing the photographsacknowledged by the injured plaintiff as accurately reflecting the condition of the manhole coveras it existed at the time of the accident, and considering all other relevant factors, Cliff Realtyestablished, prima facie, that the alleged defect was trivial as a matter of law and, therefore, notactionable (see Aguayo v New YorkCity Hous. Auth., 71 AD3d 926 [2010]; Trampakoulous v Independent Coach Bus Co., 18 AD3d 739[2005]; Morris v Greenburgh Cent.School Dist. No. 7, 5 AD3d 567 [2004]; Cicero v Selden Assoc., 295 AD2d 391[2002]; Neumann v Senior Citizens Ctr., 273 AD2d 452 [2000]). In opposition, theplaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly grantedCliff Realty's motion. Further, the Supreme Court properly, in effect, searched the record andawarded summary judgment to Promise Deli dismissing the complaint insofar as asserted againstit on the same ground (see CPLR 3212 [b]). Skelos, J.P., Chambers, Sgroi and Miller, JJ.,concur. [Prior Case History: 2010 NY Slip Op 30544(U).]