| Shmidt v JPMorgan Chase & Co. |
| 2013 NY Slip Op 08428 [112 AD3d 811] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Yevgeniya Shmidt, Respondent, v JPMorganChase & Co. et al., Appellants. |
—[*1] Bernstone & Grieco, LLP, New York, N.Y. (Matthew A. Schroeder of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Kings County (Schmidt, J.), dated May 3, 2012, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly fell due to a defect in a sidewalk abutting premises leased bythe defendant JPMorgan Chase & Co., and owned by the defendant Robert Kaufman.Thereafter, the plaintiff commenced this action. The defendants moved for summaryjudgment dismissing the complaint, contending, inter alia, that the alleged defect at issuewas trivial and, in any event, that they did not have constructive notice of the allegedcondition. The Supreme Court denied the motion.
"Generally, the issue of whether a dangerous condition exists depends on theparticular facts of each case, and is properly a question of fact for the jury" (Guidone v Town ofHempstead, 94 AD3d 1054, 1055 [2012]; see Rogers v 575 Broadway Assoc., L.P., 92 AD3d 857,858 [2012]; Sokolovskaya vZemnovitsch, 89 AD3d 918, 919 [2011]; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1013[2010]). In determining whether a defect is trivial, the court must examine all of the factspresented, including the "width, depth, elevation, irregularity and appearance of thedefect along with the time, place and circumstance of the injury" (Trincere v Countyof Suffolk, 90 NY2d 976, 978 [1997] [internal quotation marks omitted]; see Perez v 655 Montauk,LLC, 81 AD3d 619, 619-620 [2011]; Fisher v JRMR Realty Corp., 63 AD3d 677, 678 [2009]).
Here, the evidence submitted by the defendants, including the deposition testimonyof the parties and photographs of the sidewalk abutting the defendants' premises, wasinsufficient to demonstrate, as a matter of law, that the alleged defect was trivial, and,therefore, not actionable (see Trincere v County of Suffolk, 90 NY2d 976[1997]; Rogers v 575 BroadwayAssoc., L.P., 92 AD3d 857 [2012]; Perez v 655 Montauk, LLC, 81 AD3d 619 [2011]; Mishaan v Tobias, 32 AD3d1000 [2006]). Moreover, the defendants failed to demonstrate, as a matter of law,that they lacked constructive notice of the alleged defect (see Perez v 655 Montauk,LLC, 81 AD3d 619 [2011]; Bolloli v Waldbaum, Inc., 71 AD3d 618 [2010]). Since thedefendants failed to meet their initial burden as the movants, the Supreme Court [*2]properly denied their motion for summary judgmentdismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Balkin, J.P.,Lott, Austin and Miller, JJ., concur.