| Nunez v Morwood Dry Cleaners |
| 2014 NY Slip Op 02564 [116 AD3d 831] |
| April 16, 2014 |
| Appellate Division, Second Department |
| Maria Nunez, Appellant, v Morwood Dry Cleanerset al., Respondents. |
—[*1] Kim, Patterson & Sciarrino, LLP, Bayside, N.Y. (Young Min Lee of counsel), forrespondents Morwood Dry Cleaners and BMK Cleaners Corp. Ronald P. Berman, New York, N.Y., for respondents Chun Ok Lee and Kyung HeeLee.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Kings County (Graham, J.),entered August 3, 2012, as granted that branch of the motion of the defendants MorwoodDry Cleaners and BMK Cleaners which was for summary judgment dismissing thecomplaint insofar as asserted against them, and that branch of the cross motion of thedefendants Chun Ok Lee and Kyung Hee Lee which was for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
"[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 Cardona-Torres v City of NewYork, 109 AD3d 862 [2013]; Hahn v Wilhelm, 54 AD3d 896 [2008]). However, aproperty owner (and tenants) may not be held liable in damages for trivial defects, notconstituting a trap or nuisance, over which a pedestrian might merely stumble, stub his orher toes, or trip (see Schiller vSt. Francis Hosp., Roslyn, N.Y., 108 AD3d 758 [2013]; Milewski v Washington Mut.,Inc., 88 AD3d 853, 855 [2011]; Aguayo v New York City Hous. Auth., 71 AD3d 926[2010]). In determining whether a 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 Schiller v St. Francis Hosp., Roslyn,N.Y., 108 AD3d at 758; Brenner v Herricks Union Free Sch. Dist., 106 AD3d 766,767 [2013]). There is no " 'minimal dimension test' or per se rule that a defect must be ofa certain minimum height or depth in order to be actionable" (Trincere v County ofSuffolk, 90 NY2d at 977; see Brenner v Herricks Union Free Sch. Dist., 106AD3d at 767). Photographs which fairly and accurately represent the accident site may beused to establish that a defect is trivial and, therefore, not actionable (see Brenner vHerricks Union Free Sch. Dist., 106 AD3d at 767; Schenpanski v Promise Deli,Inc., 88 AD3d 982 [2011]; Aguayo v New York City Hous. Auth., 71AD3d at 926).[*2]
In support of those branches of the motion andcross motion of the respective defendants which were for summary judgment dismissingthe complaint insofar as asserted against each of them, they made a prima facie showingof entitlement to judgment as a matter of law by demonstrating that the alleged defect ina metal sidewalk cellar door was trivial, and did not possess the characteristics of a trapor nuisance (see James vNewport Gardens, Inc., 70 AD3d 1002 [2010]; Hawkins v Carter CommunityHous. Dev. Fund Corp., 40 AD3d 812, 813 [2007]; Bekritsky v TACS-4, Inc., 27AD3d 680, 681 [2006]; D'Arco v Pagano, 21 AD3d 1050, 1051 [2005]). Inopposition, the plaintiff failed to raise a triable issue of fact.
Therefore, the Supreme Court properly granted these branches of the motion andcross motion of the respective defendants which were for summary judgment dismissingthe complaint insofar as asserted against each of them. Rivera, J.P., Lott, Miller andHinds-Radix, JJ., concur.