| Abalo v Santorelli |
| 2014 NY Slip Op 01701 [115 AD3d 777] |
| March 19, 2014 |
| Appellate Division, Second Department |
| Gina Abalo, Appellant, v Michael Santorelli,Respondent. |
—[*1] McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphyof counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Bruno, J.), dated February 5, 2013, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On August 8, 2010, the plaintiff, while visiting the defendant's home, allegedly wasinjured when she tripped and fell over a door saddle situated in a doorway between thedining room and the first floor hallway. According to the plaintiff, the accident occurredas she was walking from the dining room toward the hallway when the big toe of her leftfoot became caught on the left side of the door saddle, which was elevated, causing herto lose her balance and fall.
The plaintiff commenced this action against the defendant to recover damages forpersonal injuries. After the plaintiff filed her note of issue, the defendant moved forsummary judgment dismissing the complaint, contending that the alleged defect wastrivial and, therefore, not actionable. In support of his motion, he relied upon, amongother things, the plaintiff's deposition testimony and photographs, which the plaintifftestified accurately depicted the condition of the saddle at the time of the accident. Thosephotographs showed that the elevation of the left side of the saddle was less than one halfof one inch. The Supreme Court granted the 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" (Trincere v County of Suffolk, 90 NY2d976, 977 [1997], quoting Guerrieri v Summa, 193 AD2d 647, 647 [1993]; see Copley v Town ofRiverhead, 70 AD3d 623 [2010]). However, a property owner may not be heldliable for trivial defects, not constituting a trap or nuisance, over which a person mightmerely stumble, stub his or her toes, or trip (see Trincere v County of Suffolk, 90NY2d at 977; Schenpanski vPromise Deli, Inc., 88 AD3d 982, 983 [2011]; Richardson v JAL DiversifiedMgt., 73 AD3d 1012, 1013 [2010]; Aguayo v New York City Hous. Auth., 71 AD3d 926, 927[2010]; DeLaRosa v City ofNew York, 61 AD3d 813 [2009]; Zalkin v City of New York, 36 AD3d 801, 801 [2007]). "Indetermining [*2]whether a defect is trivial, 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"(Schenpanski v Promise Deli, Inc., 88 AD3d at 983, quoting Trincere vCounty of Suffolk, 90 NY2d at 978 [internal quotation marks omitted])."Photographs which fairly and accurately represent the accident site may be used toestablish that a defect is trivial and not actionable" (Schenpanski v Promise Deli,Inc., 88 AD3d at 984; see Aguayo v New York City Hous. Auth., 71 AD3dat 927).
Here, the defendant established, prima facie, his entitlement to judgment as a matterof law by demonstrating that the alleged defect, which did not have any characteristics ofa trap or nuisance, was trivial and, therefore, not actionable (see Schenpanski vPromise Deli, Inc., 88 AD3d at 984; Aguayo v New York City Hous. Auth.,71 AD3d at 927; D'Arco vPagano, 21 AD3d 1050, 1051 [2005]; Hargrove v Baltic Estates, 278AD2d 278, 278 [2000]). In opposition, the plaintiff failed to raise a triable issue of fact(see Shiles v Carillon Nursing& Rehabilitation Ctr., LLC, 54 AD3d 746, 746 [2008]).
The plaintiff's remaining contentions either are without merit or need not be reachedin light of our determination.
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Rivera, J.P., Leventhal, Austin and Roman,JJ., concur.