| Cardona-Torres v City of New York |
| 2013 NY Slip Op 05870 [109 AD3d 862] |
| September 18, 2013 |
| Appellate Division, Second Department |
| Blanca Cardona-Torres, Appellant, v City of NewYork, Defendant, and Jamaica Seven, LLC, et al.,Respondents. |
—[*1] Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristolof counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Queens County (Kerrigan,J.), dated December 9, 2011, as granted that branch of the motion of the defendantsJamaica Seven, LLC, and Jamaica Seven Properties, LLC, which was for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the motion of the defendants Jamaica Seven, LLC, and Jamaica SevenProperties, LLC, which was for summary judgment dismissing the complaint insofar asasserted against them is denied.
On February 4, 2009, the plaintiff allegedly sustained injuries when she tripped andfell due to a difference in elevation between a section of the brick entranceway to thebuilding in which she lived and the adjoining concrete sidewalk. She commenced thisaction to recover damages for personal injuries against the owners of the building, thedefendants Jamaica Seven, LLC, and Jamaica Seven Properties, LLC (hereinaftertogether the Jamaica Seven defendants), and the City of New York. The Jamaica Sevendefendants moved, inter alia, for summary judgment dismissing the complaint insofar asasserted against them on the basis that the subject defect was trivial and, therefore,nonactionable. The Supreme Court granted that branch of the Jamaica Seven defendants'motion.
"Generally, whether a dangerous or defective condition exists depends on theparticular facts of each case, and is properly a question of fact for the jury unless thedefect is trivial as a matter of law" (Milewski v Washington Mut., Inc., 88 AD3d 853, 855[2011]; see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). "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 alongwith the time, place, and circumstance of the injury' " (Turuseta v Wyassup-Laurel GlenCorp., 91 AD3d 632, 633 [2012], quoting Trincere v County of Suffolk,90 NY2d at 978; see Brenner v[*2]Herricks Union Free Sch. Dist., 106 AD3d766, 767 [2013]). There is no "minimal dimension test" or per se rule that a defect,in order to be actionable, must be a certain height or depth (Trincere v County ofSuffolk, 90 NY2d at 977; see Milewski v Washington Mut., Inc., 88 AD3dat 856).
Here, in support of their motion, the Jamaica Seven defendants submitted evidence,including photographs, which showed that the bricks within the section of theentranceway where the plaintiff tripped were depressed below the adjacent publicsidewalk, causing a height differential of at least three quarters of an inch. This evidence,including the plaintiff's deposition testimony, was insufficient to demonstrate as a matterof law that the alleged defect was trivial and, therefore, not actionable (see Brenner vHerricks Union Free Sch. Dist., 106 AD3d at 767; Devlin v Ikram, 103 AD3d682 [2013]; Guidone vTown of Hempstead, 94 AD3d 1054, 1055 [2012]; Rogers v 575 Broadway Assoc.,L.P., 92 AD3d 857, 858 [2012]; Perez v 655 Montauk, LLC, 81AD3d 619, 620 [2011]).
Since the Jamaica Seven defendants did not meet their prima facie burden as themovants, we need not consider the sufficiency of the plaintiff's opposing papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Accordingly, the Supreme Court should have denied the branch of the Jamaica Sevendefendants' motion which was for summary judgment dismissing the complaint insofar asasserted against them. Dillon, J.P., Lott, Austin and Hinds-Radix, JJ., concur. [PriorCase History: 2011 NY Slip Op 33592(U).]