| Rogers v 575 Broadway Assoc., L.P. |
| 2012 NY Slip Op 01444 [92 AD3d 857] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Luz Rogers, Respondent, v 575 Broadway Associates, L.P.,et al., Appellants. |
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Arthur M. Unterman, Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Weiss, J.), entered April 20, 2011, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On January 30, 2006, the plaintiff exited a building located at 575 Broadway in Manhattan(hereinafter the premises) and, while walking on the Prince Street side of the premises, allegedlytripped and fell on an uneven sidewalk, sustaining injuries. Thereafter, the plaintiff commencedthis action against the defendants, 575 Broadway Associates, L.P., 575 Broadway, LLC, and 575Broadway Corporation. The defendant 575 Broadway, LLC, owns the premises. The defendant575 Broadway Corporation is an owner of the defendant 575 Broadway Associates, L.P., whichwas the lessee and responsible for maintaining the premises, including the abutting sidewalks.The Supreme Court denied the defendants' motion for summary judgment dismissing thecomplaint. The defendants appeal, and we affirm.
"[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 Aguayo v New York CityHous. Auth., 71 AD3d 926 [2010]; Copley v Town of Riverhead, 70 AD3d 623 [2010]). However,injuries resulting from trivial defects, not constituting a trap or nuisance, over which a pedestrianmight merely stumble, stub his or her toes, or trip, are not actionable (see Aguayo v New York City Hous.Auth., 71 AD3d 926 [2010]; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d481 [2007]; Outlaw v Citibank,N.A., 35 AD3d 564 [2006]).
Here, the evidence submitted by the defendants, including deposition testimony andphotographs, was insufficient to demonstrate, as a matter of law, that no defective conditionexisted on the sidewalk where the plaintiff allegedly tripped and fell, or that, if such a conditiondid exist, [*2]the defect was trivial and did not constitute a trap ornuisance, and therefore was not actionable (see Perez v 655 Montauk, LLC, 81 AD3d 619 [2011]; Bolloli v Waldbaum, Inc., 71 AD3d618 [2010]; Hahn v Wilhelm,54 AD3d 896 [2008]; Corrado vCity of New York, 6 AD3d 380 [2004]). Moreover, the defendants failed todemonstrate, as a matter of law, that they lacked constructive notice of the alleged defect (seeBolloli v Waldbaum, Inc., 71 AD3d at 620). In light of the defendants' failure to meet theirprima facie burden, it is unnecessary to determine whether the plaintiff's opposition papers weresufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]).
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Dillon, J.P., Florio, Chambers and Lott, JJ., concur.