| Nagin v K.E.M. Enters., Inc. |
| 2013 NY Slip Op 07945 [111 AD3d 901] |
| November 27, 2013 |
| Appellate Division, Second Department |
| Toni A. Nagin et al., Appellants, v K.E.M.Enterprises, Inc., Respondent. |
—[*1] John C. Buratti, Hicksville, N.Y. (George R. Krumholz of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Nassau County (Galasso, J.), entered May 23, 2012,which granted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is denied.
This appeal arises out of a trip-and-fall accident that occurred in the entrance foyer ofa building located at the New York Institute of Technology. The subject area wascovered by a marble floor with a recessed portion in which a berber carpet mat wassituated. The plaintiff Toni A. Nagin (hereinafter the injured plaintiff) alleges that shefell as a result of a difference in height between the top of the mat and the surroundingfloor area. The defendant is the company that installed the replacement berber mats intothe already existing pre-cut floor area.
The defendant moved for summary judgment dismissing the complaint, arguing thatthe alleged defect was trivial and, therefore, not actionable, and that, in any event, itneither had notice of nor created the alleged defect. The Supreme Court granted themotion, concluding that the defendant established its prima facie entitlement to judgmentas a matter of law, and that the plaintiffs failed to raise a triable issue of fact inopposition.
"[W]hether a dangerous or defective condition exists on the property of another so asto create liability depends on the peculiar facts and circumstances of each case and isgenerally a question of fact for the jury" (Trincere v County of Suffolk, 90 NY2d976, 977 [1997] [internal quotation marks omitted]). However, liability will not beimposed for trivial defects which do not constitute a trap or nuisance (see Dery v K Mart Corp., 84AD3d 1303, 1304 [2011]; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1013[2010]; Joseph v Villages atHuntington Home Owners Assn., Inc., 39 AD3d 481 [2007]). "In determiningwhether a defect is trivial as a matter of law, a court must examine all of the factspresented, including the width, depth, elevation, irregularity, and appearance of thedefect, along with the time, place, and circumstances of the injury" (Fontana v Winery, 84 AD3d863, 864-865 [2011] [internal quotation marks omitted]; see Trincere v Countyof Suffolk, 90 NY2d at 978).
In support of its motion for summary judgment, the defendant submitted photographsof the subject area, as well as transcripts of the deposition testimony of the injuredplaintiff and one [*2]of its own principals. However, thisevidence did not provide any details regarding the height of the carpet mat in relation tothe surrounding floor area. In fact, at his deposition, the defendant's witness did notknow the depth of the recessed area in the floor, the thickness of the carpet mat that wasinstalled, or whether the carpet mat was flush with the surrounding floor. Nor did thephotographs demonstrate that there was a trivial height differential between the surfaceof the carpet mat and the surface of the surrounding floor. Accordingly, the defendantfailed to establish, prima facie, that the alleged defect was trivial and, therefore, notactionable (see Jackson vJamaica First Parking, LLC, 91 AD3d 602 [2012]; Lagrasta v Town of OysterBay, 88 AD3d 658 [2011]; Araujo v City of New York, 84 AD3d 993 [2011]; Bolloli v Waldbaum, Inc., 71AD3d 618, 619 [2010]; DeLaRosa v City of New York, 61 AD3d 813, 814[2009]).
Furthermore, "[a] defendant who moves for summary judgment in a trip-and-fall casehas the initial burden of making a prima facie showing that it neither created the allegedhazardous condition, nor had actual or constructive notice of its existence for a length oftime sufficient to discover and remedy it" (Arzola v Boston Props. Ltd. Partnership, 63 AD3d 655,656 [2009]; see Pryzywalny vNew York City Tr. Auth., 69 AD3d 598, 598 [2010]). Here, the defendant failedto demonstrate, prima facie, that its installation of the carpet did not create the allegeddefect.
In light of the defendant's failure to meet its prima facie burden, it is unnecessary todetermine whether the papers submitted by the plaintiffs in opposition to the defendant'smotion were sufficient to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Mastro, J.P., Leventhal, Austin and Sgroi, JJ.,concur.