| Das v Sun Wah Rest. |
| 2012 NY Slip Op 06775 [99 AD3d 752] |
| October 10, 2012 |
| Appellate Division, Second Department |
| Animesh Das, Respondent, v Sun Wah Restaurant,Respondent-Appellant, and George Gus Livanos,Appellant-Respondent. |
—[*1] Tromello, McDonnell & Kehoe, Melville, N.Y. (Stephen J. Donnelly of counsel), forrespondent-appellant. Silvia M. Surdez, P.C., Astoria, N.Y. (Kevin J. Perez of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant George Gus Livanosappeals (1) from so much of an order of the Supreme Court, Queens County (Weiss, J.), datedJanuary 13, 2011, as denied his motion for summary judgment on his cross claim against thedefendant Sun Wah Restaurant for contractual indemnification and denied his cross motion forsummary judgment dismissing the complaint insofar as asserted against him or, in the alternative,pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him, and (2)from an order of the same court dated August 1, 2011, which denied his motion for leave toreargue, and the defendant Sun Wah Restaurant cross-appeals from so much of the order datedJanuary 13, 2011, as denied its motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against it.
Ordered that the appeal from the order dated August 1, 2011, is dismissed, as no appeal liesfrom an order denying leave to reargue; and it is further,
Ordered that the order dated January 13, 2011, is reversed, on the law and in the exercise ofdiscretion, the motion of the defendant Sun Wah Restaurant for summary judgment dismissingthe complaint and all cross claims insofar as asserted against it and that branch of the crossmotion of the defendant George Gus Livanos which was for summary judgment dismissing thecomplaint insofar as asserted against him are granted, and the motion of the defendant GeorgeGus Livanos for summary judgment on his cross claim is denied as academic; and it is further,
Ordered that one bill of costs is awarded to the appellant-respondent and therespondent-appellant, payable by the respondent.
The plaintiff allegedly tripped and fell on a crack in a public sidewalk abutting the propertyowned by the nonparty LPA Management Co. (hereinafter LPA) and leased to the defendant[*2]Sun Wah Restaurant (hereinafter Sun Wah). The plaintiffsubsequently commenced this action against Sun Wah and George Gus Livanos, one of LPA'sshareholders.
After issue was joined and discovery commenced, the parties stipulated that motions forsummary judgment would be made returnable no later than May 19, 2010. Thereafter, Sun Wahtimely moved for summary judgment dismissing the complaint and all cross claims insofar asasserted against it, and Livanos timely moved for summary judgment on his cross claim againstSun Wah for contractual indemnification. Subsequently, Livanos separately cross-moved forsummary judgment dismissing the complaint insofar as asserted against him or, in the alternative,to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. TheSupreme Court denied Sun Wah's motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against it, and Livanos's motion for summary judgment on hiscross claim. Moreover, the Supreme Court denied, as untimely, Livanos's cross motion. Livanosappeals, and Sun Wah cross-appeals.
"Property owners (and tenants) may not be held liable for trivial defects, not constituting atrap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip" (Milewski v Washington Mut., Inc., 88AD3d 853, 855 [2011]; seeSchenpanski v Promise Deli, Inc., 88 AD3d 982, 983 [2011]). "Generally, whether adangerous or defective condition exists depends on the particular facts of each case, and isproperly a question of fact for the jury unless the defect is trivial as a matter of law"(Milewski v Washington Mut., Inc., 88 AD3d at 855; see Trincere v County ofSuffolk, 90 NY2d 976, 977 [1997]). Defects do not have to be of a certain minimum heightor depth to be actionable (see Trincere v County of Suffolk, 90 NY2d at 977; Turuseta v Wyassup-Laurel GlenCorp., 91 AD3d 632, 633 [2012]; Milewski v Washington Mut., Inc., 88 AD3dat 856). Instead, courts are to examine all of the facts, including the measurements andappearance of the defect, "along with the 'time, place and circumstance[s]' of the injury"(Trincere v County of Suffolk, 90 NY2d at 978, quoting Caldwell v Village of Is.Park, 304 NY 268, 274 [1952]; see Milewski v Washington Mut., Inc., 88 AD3d at855-856; see also Turuseta v Wyassup-Laurel Glen Corp., 91 AD3d at 633). Photographsof a defect which fairly and accurately reflect how it appeared on the date of the accident may beused to demonstrate whether it is trivial (see Schenpanski v Promise Deli, Inc., 88 AD3dat 984).
Here, Sun Wah met its burden of establishing its entitlement to judgment as a matter of lawdismissing the complaint and all cross claims insofar as asserted against it. Sun Wah submittedthe plaintiff's deposition testimony and a photograph shown to the plaintiff during the plaintiff'sdeposition, which, according to the plaintiff's deposition testimony, depicted the defect whichallegedly caused his fall. By these submissions, Sun Wah demonstrated, as a matter of law, thatthe defect, which did not have the characteristics of a trap or nuisance, was trivial and, therefore,not actionable (see Sawicki v ConklinRealty Co., LLC, 94 AD3d 1083, 1083 [2012]; Schenpanski v Promise Deli,Inc., 88 AD3d at 984; Koznesoff vFirst Hous. Co., Inc., 74 AD3d 1027, 1028 [2010]; Fisher v JRMR Realty Corp., 63 AD3d 677, 677-678 [2009]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Koznesoff v First Hous. Co.,Inc., 74 AD3d at 1028; Rosello vCity of New York, 62 AD3d 980, 981 [2009]).
Moreover, the Supreme Court should have considered that branch of Livanos's cross motionwhich was for summary judgment dismissing the complaint insofar as asserted against him eventhough it was filed almost a month after the deadline set by the parties' stipulation, which wasso-ordered by the Supreme Court. "[A] court may properly consider an untimely summaryjudgment motion, provided the late motion is based on nearly identical grounds as [a] timelymotion" (Lennard v Khan, 69 AD3d812, 814 [2010], quoting Perfito vEinhorn, 62 AD3d 846, 847 [2009] [internal quotations marks omitted]; see Ianello v O'Connor, 58 AD3d684, 685-686 [2009]; Grande vPeteroy, 39 AD3d 590, 591-592 [2007]). "Notably, the court, in the course of decidingthe timely motion, is, in any event, empowered to search the record and award summaryjudgment to [the] nonmoving party" (Lennard v Khan, 69 AD3d at 814 [internalquotations marks omitted]; see CPLR 3212 [b]). Since Sun Wah's motion was properlybefore the Supreme Court, the court improvidently exercised its discretion in refusing to considerthat branch of Livanos's cross motion, made on nearly identical grounds, on the basis thatLivanos did not timely move (see Lennard v Khan, 69 AD3d at 814; Ianello vO'Connor, 58 AD3d at 686). Further, given that, as a matter of law, the defect was trivial[*3]and not actionable, that branch of Livanos's cross motionshould have been granted.
In light of our determination, the parties' remaining contentions have been renderedacademic. Eng, P.J., Angiolillo, Lott and Austin, JJ., concur.