| Sahni v Kitridge Realty Co., Inc. |
| 2014 NY Slip Op 01157 [114 AD3d 837] |
| February 19, 2014 |
| Appellate Division, Second Department |
| Hardev Sahni, Respondent, v Kitridge Realty Co.,Inc., et al., Appellants. |
—[*1] Shaub, Ahmuty, Citrin & Spratt, LLP, New York, N.Y. (Sari Havia of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Suffolk County (Whelan, J.), dated June 27, 2012, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when he tripped and fell due to a heightdifferential in a sidewalk abutting premises owned by the defendant Kitridge Realty Co.,Inc., and maintained by the defendant Building Management Company, Inc. (hereinaftertogether the defendants). The defendants moved for summary judgment dismissing thecomplaint, contending that the alleged defect in the sidewalk was trivial and that, in anyevent, they lacked actual or constructive notice of the alleged defect. The Supreme Courtdenied the motion, and the defendants appeal.
Generally, whether a condition is dangerous or defective depends on the particularfacts of each case, and is properly a question of fact for the jury unless the alleged defectis trivial as a matter of law (see Trincere v County of Suffolk, 90 NY2d 976, 977[1997]; Milewski v WashingtonMut., Inc., 88 AD3d 853, 855 [2011]; Delaney v Town Sports Intl., 88 AD3d 635, 636 [2011]).In determining whether an alleged defect is trivial as a matter of law, the court mustexamine all of the facts presented, including the "width, depth, elevation, irregularity andappearance of the defect along with the 'time, place and circumstance' of the injury"(Trincere v County of Suffolk, 90 NY2d at 978, quoting Caldwell v Villageof Is. Park, 304 NY 268, 274 [1952]; see Shmidt v JPMorgan Chase & Co., 112 AD3d 811[2013]; Milewski v Washington Mut., Inc., 88 AD3d at 855-856). Here, theevidence that the defendants submitted in support of their motion, including thephotographs of the sidewalk where the plaintiff allegedly was injured, was insufficient todemonstrate as a matter of law, that the alleged defect was trivial and, therefore, notactionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]; Shmidt vJPMorgan Chase & Co., 112 AD3d at 812; Rogers v 575 Broadway Assoc., L.P., 92 AD3d 857, 858[2012]; cf. Milewski v Washington Mut., Inc., 88 AD3d at 856).[*2]
Additionally, the defendants' evidence did notdemonstrate, prima facie, that the defendants lacked constructive notice of the allegeddefect. The evidence did not establish that the alleged defect was not visible and apparentand did not exist for a sufficient length of time to permit the defendants to discover andremedy it (see Perez v 655Montauk, LLC, 81 AD3d 619, 620 [2011]; Bolloli v Waldbaum, Inc., 71 AD3d 618, 619 [2010]).
The defendants' remaining contentions, having been raised for the first time in theSupreme Court in the defendants' reply papers, are not properly before this Court (see Adler v City of New York,52 AD3d 549, 550 [2008]).
Inasmuch as the defendants failed to satisfy their prima facie burden on their motionfor summary judgment dismissing the complaint, it was unnecessary, as the SupremeCourt correctly noted, to consider whether the plaintiff's opposition papers raised atriable issue of fact (see LongIs. Light. Co. v Town of N. Hempstead, 101 AD3d 956, 956 [2012]; Cruz v Advanced Concrete LeasingCorp., 101 AD3d 666, 667 [2012]).
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment. Dillon, J.P., Balkin, Chambers and Cohen, JJ., concur.