| Maciaszek v Sloninski |
| 2013 NY Slip Op 02722 [105 AD3d 1012] |
| April 24, 2013 |
| Appellate Division, Second Department |
| Iwona Maciaszek, Appellant, v Leonard Sloninskiet al., Respondents. |
—[*1] Penino & Moynihan, LLP, White Plains, N.Y. (Henry L. Liao of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Siegal, J.), entered August 4, 2011, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when she fell on an interior staircase of theapartment building where she resided, which was owned by the defendants. The plaintiffalleged that she was walking down the staircase when she slipped on a hole in one of thesteps connecting the first floor to the second floor, and fell. The defendants moved forsummary judgment dismissing the complaint, contending that the alleged defect wastrivial and, therefore, not actionable. The Supreme Court granted the motion.
A property owner may not be held liable for trivial defects, not constituting a trap ornuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Rogers v 575 BroadwayAssoc., L.P., 92 AD3d 857 [2012]; Sokolovskaya v Zemnovitsch, 89 AD3d 918 [2011]; Koznesoff v First Hous. Co.,Inc., 74 AD3d 1027 [2010]). In determining whether a defect is trivial, the courtmust examine all of the facts presented, including the "width, depth, elevation,irregularity and appearance of the defect along with the time, place and circumstance ofthe injury" (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997] [citationand internal quotation marks omitted]).
Here, the defendants established their entitlement to judgment as a matter of law bydemonstrating, prima facie, that the alleged defect at issue was trivial and, therefore, notactionable. The plaintiff testified at her deposition that the semi-circular hole was oneinch in diameter, half an inch deep, and located at the edge of the step. She used thestaircase all the time, and she never had a problem traversing the area prior to theaccident. Under the circumstances presented here, the alleged defect did not possess thecharacteristics of a trap or nuisance, and was trivial and, therefore, not actionable (see Sawicki v Conklin Realty Co.,LLC, 94 AD3d 1083 [2012]; Grosskopf v 8320 Parkway Towers Corp., 88 AD3d 765[2011]; Sulca v Barry HersRealty, Inc., 29 AD3d 779 [2006]). In opposition, the [*2]plaintiff failed to submit evidence sufficient to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Thenew theory of liability espoused by the plaintiff for the first time on appeal is notproperly before this Court (seeWalker v George, 97 AD3d 741 [2012]). Skelos, J.P., Balkin, Cohen and Miller,JJ., concur.