| Deviva v Bourbon St. Fine Foods & Spirit |
| 2014 NY Slip Op 02255 [116 AD3d 654] |
| April 2, 2014 |
| Appellate Division, Second Department |
| Salvatore A. Deviva, Appellant, v Bourbon StreetFine Foods & Spirit et al., Defendants, and Del Prete Family Limited Partnership,Respondent. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (Christopher T. Vetro of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Queens County(Rosengarten, J.), dated January 18, 2013, as granted that branch of the motion of thedefendant Del Prete Family Limited Partnership which was for summary judgmentdismissing the complaint insofar as asserted against it and, upon searching the record,awarded summary judgment dismissing the complaint insofar as asserted against thedefendants Bourbon Street Fine Foods & Spirit and MJB Ale House, Inc.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the motion of the defendant Del Prete Family Limited Partnershipwhich was for summary judgment dismissing the complaint insofar as asserted against itis denied.
The plaintiff allegedly sustained injuries when he tripped and fell over a raised areaof sidewalk flagstone abutting premises located at 40-10 Bell Boulevard, in Bayside. Hecommenced this action to recover damages for personal injuries against the owner of thepremises, Del Prete Family Limited Partnership (hereinafter Del Prete), and the tenants,Bourbon Street Fine Foods & Spirit (hereinafter Bourbon Street) and MJB Ale House,Inc. (hereinafter MJB). Del Prete moved for summary judgment dismissing the complaintand all cross claims insofar as asserted against it on the ground that the alleged defectwas trivial in nature. The Supreme Court granted Del Prete's motion and, upon searchingthe record, also awarded summary judgment dismissing the complaint insofar as assertedagainst Bourbon Street and MJB.
"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. However, aproperty owner may not be held liable for trivial defects, not constituting a trap ornuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip" (Turuseta v Wyassup-Laurel GlenCorp., 91 AD3d 632, 633 [2012] [internal citations omitted]). In determiningwhether a defect is trivial, 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, and circumstance of the injury" (Trincere v County of Suffolk, 90 NY2d976, 978 [1997]). There is no "minimal dimension test" or "per se rule" that a conditionmust be of a certain height or depth in order to be actionable (id. at 977; see Milewski [*2]v Washington Mut., Inc., 88 AD3d 853 [2011]; Ricker v Board of Educ. of Townof Hyde Park, 61 AD3d 735 [2009]). Photographs which fairly and accuratelyrepresent the accident site may be used to establish whether a defect is trivial and notactionable (see Das v Sun WahRest., 99 AD3d 752 [2012]).
Here, the only photograph acknowledged by the plaintiff to accurately depict thecondition of the area where he allegedly tripped and fell was a poor quality black andwhite photograph, upon which the plaintiff circled the subject area during his deposition.Del Prete annexed this photograph, as well as an unmarked copy of this photograph, toits moving papers. This photograph is of such poor quality that it is impossible todetermine whether the alleged defect is trivial as a matter of law. In addition, Del Pretepresented the affidavit of its investigator, Charles Lombardi, who annexed a series ofphotographs that were not acknowledged by the plaintiff to accurately depict thecondition of the area where he tripped and fell. Therefore, these additional photographsare insufficient to establish, as a matter of law, that the alleged defect was trivial and,therefore, unactionable.
Consequently, Del Prete failed to meet its prima facie burden of establishing itsentitlement to judgment as a matter of law, and that branch of Del Prete's motion whichwas for summary judgment dismissing the complaint insofar as asserted against it shouldhave been denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]). For the same reason, the Supreme Court erred in searching the record andawarding summary judgment to Bourbon Street and MJB. Eng, P.J., Dillon, Maltese andDuffy, JJ., concur.