| Brenner v Herricks Union Free Sch. Dist. |
| 2013 NY Slip Op 03290 [106 AD3d 766] |
| May 8, 2013 |
| Appellate Division, Second Department |
| Doris Brenner, Appellant, v Herricks Union FreeSchool District, Respondent, et al., Defendant. |
—[*1] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale,N.Y. (Gregory A. Cascino of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Woodard, J.), dated October 3, 2011, whichgranted the motion of the defendant Herricks Union Free School District for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant Herricks Union Free School District for summary judgment dismissing thecomplaint insofar as asserted against it is denied.
On May 29, 2009, the plaintiff allegedly tripped and fell on a sidewalk whileattending a carnival on the grounds of the Herricks School in New Hyde Park. Theplaintiff subsequently commenced this personal injury action against the defendantHerricks Union Free School District (hereinafter the school district) and the IncorporatedVillage of New Hyde Park. The school district moved for summary judgment dismissingthe complaint insofar as asserted against it, arguing, inter alia, that the sidewalk defect,which had been present for approximately two years, was nevertheless too trivial to beactionable. The Supreme Court granted the school district's motion for summaryjudgment on that basis.
In determining whether a defect is trivial, courts must examine all of the factspresented including the width, depth, elevation, irregularity, and appearance of thedefect, and the time, place, and circumstances of the accident (see Trincere v Countyof Suffolk, 90 NY2d 976, 978 [1997]; Turuseta v Wyassup-Laurel Glen Corp., 91 AD3d 632, 633[2012]). As stated by the Court of Appeals, "there is no 'minimal dimension test' or per serule that a defect must be of a certain minimum height or depth in order to be actionable"(Trincere v County of Suffolk, 90 NY2d at 977).
"Photographs which fairly and accurately represent the accident site may be used toestablish that a defect is trivial and not actionable" (Schenpanski v Promise Deli, Inc., 88 AD3d 982, 984[2011]; see Maiello vEastchester Union Free School Dist., 8 AD3d 536, 536-537 [2004]). Here, thephotographs submitted by the school district depict a lengthy crack in the pavementwhich was at [*2]least three quarters of an inch deep andapproximately four inches wide at the specific site of the accident. Given the high-trafficlocation of the occurrence, the length, depth, width, and irregularity of the defect, and thecircumstances of the accident as set forth in witness testimony, the school district failedto meet its prima facie burden of establishing that the defect was trivial andnonactionable as a matter of law (see Guidone v Town of Hempstead, 94 AD3d 1054, 1055[2012]; Perez v 655 Montauk,LLC, 81 AD3d 619 [2011]; Corrado v City of New York, 6 AD3d 380 [2004]). Sincethe school district failed to meet its prima facie burden, we need not consider thesufficiency of the papers submitted in opposition (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the school district's motion forsummary judgment dismissing the complaint insofar as asserted against it should havebeen denied. Dillon, J.P., Balkin, Austin and Sgroi, JJ., concur.