| Freas v Tilles Ctr. |
| 2011 NY Slip Op 07808 [89 AD3d 680] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Terry Freas, Respondent, v Tilles Center et al.,Appellants. |
—[*1] Christopher S. Olson, Huntington, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Adams, J.), entered February 14, 2011, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
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 Trincere vCounty of Suffolk, 90 NY2d 976, 977 [1997]; DeLaRosa v City of New York, 61 AD3d 813 [2009]; Berry v Rocking Horse Ranch Corp.,56 AD3d 711 [2008]; Hahn vWilhelm, 54 AD3d 896, 898 [2008]). Property owners (and tenants) may not be heldliable for 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).
There is no " 'minimal dimension test' or per se rule" that the condition must be of a certainheight or depth to be actionable (Trincere v County of Suffolk, 90 NY2d at 977). Rather,in determining whether a defect is trivial as a matter of law, the court must examine the factspresented, including the "width, depth, elevation, irregularity, and appearance of the defect alongwith the 'time, place, and circumstance[s]' of the injury" (id. at 978, quoting Caldwellv Village of Is. Park, 304 NY 268, 274 [1952]; see DeLaRosa v City of New York,61 AD3d at 813-814; Hahn v Wilhelm, 54 AD3d at 898).
Here, under the circumstances presented, the defendants failed to make a prima facieshowing that the alleged defect was trivial as a matter of law and, thus, not actionable (seeDeLaRosa v City of New York, 61 AD3d at 814; Boxer v Metropolitan Transp. Auth., 52 AD3d 447, 448 [2008]).Failure to make such a prima facie showing requires a denial of the motion, regardless of thesufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The defendants' remaining contentions, which pertain to affidavits submitted by the [*2]plaintiff in opposition to the motion, need not be considered in lightof our determination.
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Rivera, J.P., Eng, Belen and Austin, JJ., concur.