| Lupa v City of Oswego |
| 2014 NY Slip Op 03055 [117 AD3d 1418] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1]
| Helen Lupa, Respondent, v City of Oswego,Appellant. |
Bond, Schoeneck & King, PLLC, Oswego (Douglas M. McRae of counsel), fordefendant-appellant.
Sugarman Law Firm, LLP, Syracuse (Leigh A. Lieberman of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr.,J.), entered March 12, 2013. The order denied the motion of defendant for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking to recover damages forinjuries she allegedly sustained when she tripped and fell on the elevated edge of aparking space maintained by defendant. Defendant moved for summary judgmentdismissing the complaint on the ground that the defect was trivial as a matter of law.Supreme Court denied the motion, and we affirm.
"[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] [internal quotation marks omitted]; see Tesak v Marine MidlandBank, 254 AD2d 717, 717-718 [1998]). "[T]here is no 'minimal dimension test' orper se rule that a defect must be of a certain minimum height or depth in order to beactionable" (Trincere, 90 NY2d at 977). Although, "in some instances, the trivialnature of the defect may loom larger than another element[,] . . . [a]mechanistic disposition of a case based exclusively on the dimension of the [pavement]defect" is inappropriate (id. at 977-978). Thus, a determination of whether aparticular defect is actionable requires examination of "the facts presented, including thewidth, depth, elevation, irregularity and appearance of the defect along with the time,place and circumstance of the injury" (id. at 978 [internal quotation marksomitted]; see Tesak, 254 AD2d at 717-718).
Here, we conclude that defendant failed to meet its initial burden of establishing thatthe defect was trivial and nonactionable as a matter of law (see Brenner v HerricksUnion Free Sch. Dist., 106 AD3d 766, 767-768 [2013]; Gafter v Buffalo Med. Group,P.C., 85 AD3d 1605, 1605-1606 [2011]; Seivert v Kingpin Enters., Inc., 55 AD3d 1406, 1407[2008]). The photographs submitted in support of defendant's motion depict a lengthyedge in the pavement that was more than two thirds of an inch deep and spanned thewidth of the painted walking area adjacent to the designated [*2]handicapped parking space (see Brenner, 106 AD3dat 767). Defendant also submitted plaintiff's deposition testimony, in which she testifiedthat her right foot caught on "a quite high ledge" in the pavement at the rear of theparking space (see Gafter, 85 AD3d at 1605-1606; Tineo v Parkchester S.Condominium, 304 AD2d 383, 383 [2003]). Although defendant characterizes theedge as "a small, rounded lip in the pavement," the photographs depict crumblingasphalt, and the edge appears to be irregular, jagged and abrupt as opposed to gradual (see Jacobsen v Krumholz, 41AD3d 128, 128-129 [2007]; McKenzie v Crossroads Arena, 291 AD2d 860,860-861 [2002], lv dismissed 98 NY2d 647 [2002]; see generally Argenio vMetropolitan Transp. Auth., 277 AD2d 165, 166 [2000]). Unlike Squires vCounty of Orleans (284 AD2d 990, 990 [2001]), where the trivial defect involved" 'a small area' " of a " 'cracked and crumbly' " curb that"had no 'measurable depth,' " plaintiff's deposition testimony and thephotographs in this case, particularly the photographs depicting the area closest toplaintiff's vehicle, suggest a measurable edge in the pavement that could pose a trippinghazard. Because defendant "failed to meet [its] initial burden on the motion, we need notconsider the sufficiency of plaintiff's opposing papers" (Gafter, 85 AD3d at 1606;see Seivert, 55 AD3d at 1407-1408; see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Present—Centra, J.P., Peradotto, Carni,Valentino and Whalen, JJ.