| Nussbaum v Broken Down Valise Pub |
| 2014 NY Slip Op 01589 [115 AD3d 718] |
| March 12, 2014 |
| Appellate Division, Second Department |
| Margaret Nussbaum, Appellant, v Broken DownValise Pub et al., Respondents. |
—[*1] Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Nicholas P. Hurzeler andGregory S. Katz of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Pineda-Kirwan, J.), entered April 6, 2012,which granted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
According to the plaintiff, on June 15, 2009, as she was walking to the restroominside the defendant Broken Down Valise Pub, which was owned and operated by thedefendant Highlander Group, LLC, her right foot "ca[ught] on something" and she fell,sustaining injuries. After the accident, the plaintiff observed a metal grate on the floor,which she testified was the cause of her fall. The plaintiff commenced this action torecover damages for personal injuries. Following service of an answer, the defendantsmoved for summary judgment dismissing the complaint. The Supreme Court granted thedefendants' motion.
"[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" (Aguayo v New York City Hous. Auth., 71 AD3d 926, 927[2010] [internal quotation marks omitted]; see Trincere v County of Suffolk, 90NY2d 976, 977 [1997]; Copleyv Town of Riverhead, 70 AD3d 623, 623 [2010]; Guerrieri v Summa,193 AD2d 647, 647 [1993]). "However, a property owner may not be held liable indamages for trivial defects, not constituting a trap or nuisance, over which a pedestrianmight merely stumble, stub his or her toes, or trip" (Aguayo v New York City Hous.Auth., 71 AD3d at 927; seeJoseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481, 482[2007]; Outlaw v Citibank,N.A., 35 AD3d 564, 564 [2006]). "In determining whether a defect is trivial as amatter of law, the court must examine all of the facts presented, including the width,depth, elevation, irregularity and appearance of the defect along with the time, place andcircumstance of the injury" (Aguayo v New York City Hous. Auth., 71 AD3d at927 [internal quotation marks omitted]; see Trincere v County of Suffolk, 90NY2d at 978; Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]).[*2]
The photographs of the metal floor grate,deposition testimony, and other evidence submitted by the defendants established, primafacie, that the alleged defect was not actionable, as it was trivial and did not possess thecharacteristics of a trap or nuisance (see Trincere v County of Suffolk, 90 NY2d976 [1997]; Schiller v St.Francis Hosp., Roslyn, N.Y., 108 AD3d 758, 759-760 [2013]; Schenpanski v Promise Deli,Inc., 88 AD3d 982, 984 [2011]; Aguayo v New York City Hous. Auth.,71 AD3d at 927; Copley v Town of Riverhead, 70 AD3d at 624). In opposition,the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Courtproperly granted the defendants' motion for summary judgment dismissing the complaint.Rivera, J.P., Dickerson, Leventhal and Hall, JJ., concur.