| Sokolovskaya v Zemnovitsch |
| 2011 NY Slip Op 08342 [89 AD3d 918] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Debora Sokolovskaya, Appellant, v Natalia Zemnovitsch, DoingBusiness as Paradise II Resort and Another, et al., Respondents. |
—[*1] Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, New York, N.Y. (Thomas G. Darmody ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Kings County (R. Miller, J.), dated March 25, 2010, which granted the defendants'motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when she tripped and fell on a partially raised floor plank at aresort owned by the defendants. The defendants moved for summary judgment dismissing the complainton the grounds that the alleged defect was trivial as a matter of law and, in any event, that they lackednotice of it. In support of their motion, the defendants submitted, inter alia, the deposition testimony oftheir superintendent. The superintendent testified that he regularly inspected the resort premises eachmorning, including on the morning of the day of the plaintiff's accident, but did not see any defect in thesubject floor, which is comprised of adjacent wooden planks. Each of the planks measure one inch inheight and five inches in width. Upon a thorough inspection of the area after the plaintiff's fall, he noticeda height differential between the subject wooden plank and the adjacent plank. He did not measure theheight differential. Based upon his personal observations and photographs taken by the plaintiff'sdaughter, he testified that the plank was partially raised about one quarter of an inch above the adjacentplank. The plaintiff's deposition testimony established that the lighting was sufficient for her to see whereshe was walking at the time of her accident.
In opposition to the motion, the plaintiff presented evidence including photographs of the accidentlocation and the affidavit of the plaintiff's daughter in which she stated that she had taken thephotographs the day after the accident, and that they fairly and accurately depicted the alleged defect.She did not measure the height differential, but stated her opinion that the plank was raised at least oneinch above the adjacent plank.
The Supreme Court granted the defendants' motion for summary judgment dismissing [*2]the complaint, finding that the defendants established, prima facie, thatthey did not create or have notice of the alleged defect, and that the plaintiff failed to raise a triable issueof fact in opposition. We affirm, albeit on different grounds.
The defendants established, prima facie, their entitlement to judgment as a matter of law on theground that the alleged defect was trivial as a matter of law. "[W]hether a dangerous or defectivecondition exists on the property of another so as to create liability depends on the peculiar facts andcircumstances of each case and is generally a question of fact for the jury" (Trincere v County ofSuffolk, 90 NY2d 976, 977 [1997] [internal quotation marks omitted]). "However, a propertyowner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, overwhich a pedestrian might merely stumble, stub his or her toes, or trip" (Dery v K Mart Corp., 84 AD3d 1303,1304 [2011]; see Richardson v JALDiversified Mgt., 73 AD3d 1012, 1013 [2010]; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d481 [2007]). "In determining whether a defect is trivial as a matter of law, a court must examine allof the facts presented, including the width, depth, elevation, irregularity and appearance of the defect,along with the time, place, and circumstance of the injury" (Fontana v Winery, 84 AD3d 863, 864-865 [2011] [internal quotationmarks omitted]; see Trincere v County of Suffolk, 90 NY2d at 978).
Here, considering the appearance of the alleged defect in the photographs, the testimony of thedefendants' superintendent, and all relevant circumstances of the accident, the defendants established,prima facie, that the alleged defect did not possess the characteristics of a trap or nuisance and was tootrivial to be actionable (see Shiles v CarillonNursing & Rehabilitation Ctr., LLC, 54 AD3d 746 [2008]; Hawkins v Carter Community Hous. Dev. FundCorp., 40 AD3d 812, 813 [2007]; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d481 [2007]; Zalkin v City of NewYork, 36 AD3d 801, 802 [2007]; Taussig v Luxury Cars of Smithtown, Inc., 31 AD3d 533 [2006]). Inopposition, the opinion of the plaintiff's daughter that the alleged elevation differential was at least aninch is unsupported by the photographs, which demonstrate, consistent with the testimony of thedefendants' superintendent, that the elevation differential was less than one inch and closer to onequarter of an inch. Thus, the plaintiff failed to raise a triable issue of fact as to whether the alleged defectwas trivial as a matter of law (see Losito v JPMorgan Chase & Co., 72 AD3d 1033, 1034 [2010]; Shiles v Carillon Nursing &Rehabilitation Ctr., LLC, 54 AD3d at 746; Dick v Gap, Inc., 16 AD3d 615, 615-616 [2005]). Accordingly, theSupreme Court properly granted the defendants' motion for summary judgment dismissing thecomplaint.
In light of our determination, we need not reach the plaintiff's remaining contention. Angiolillo, J.P.,Leventhal, Austin and Roman, JJ., concur.