| Guidone v Town of Hempstead |
| 2012 NY Slip Op 03141 [94 AD3d 1054] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Joseph Guidone et al., Appellants, v Town of Hempstead etal., Respondents. |
—[*1] London Fischer, LLP, New York, N.Y. (James Walsh of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Winslow, J.), dated October 29, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The injured plaintiff allegedly fell when his left foot went into a crack or slot in the grassyarea between the curb and the sidewalk abutting his property. Pursuant to its contract with thedefendant Town of Hempstead, the defendant Welsbach Electric Corp. performed some work inthe area prior to the accident. As a result, the injured plaintiff and his wife, suing derivatively,commenced this action against the defendants. The defendants moved for summary judgmentdismissing the complaint, contending that the alleged defect was trivial and not actionable. TheSupreme Court granted the motion. The plaintiffs appeal, and we reverse.
Generally, the issue of whether a dangerous condition exists depends on the particular factsof each case, and is properly a question of fact for the jury (see Trincere v County ofSuffolk, 90 NY2d 976 [1997]; DeLaRosa v City of New York, 61 AD3d 813 [2009]). Indetermining whether a defect is trivial, the court must examine all of the facts presented,including the "width, depth, elevation, irregularity and appearance of the defect along with thetime, place[,] and circumstance of the injury" (Trincere v County of Suffolk, 90 NY2d at978 [internal quotation marks omitted]).
The Supreme Court should have denied the defendants' motion for summary judgmentdismissing the complaint. Here, the evidence submitted by the defendants, including depositiontestimony and photographs, was insufficient to demonstrate as a matter of law that the allegeddefect was trivial, and therefore not actionable (see Perez v 655 Montauk, LLC, 81 AD3d 619 [2011]; Corrado v City of New York, 6 AD3d380 [2004]). Since the defendants failed to meet their initial burden as the movants, it is notnecessary to review the sufficiency of the opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851 [1985]). Rivera, J.P., Hall, Lott and Austin, JJ., concur.