| Grundstrom v Papadopoulos |
| 2014 NY Slip Op 03484 [117 AD3d 788] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| Josephine Grundstrom, Respondent, v GregoryPapadopoulos, Appellant, et al., Defendants. (And a Third-PartyAction.) |
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Harold A. Campbell ofcounsel), for appellant.
Laurence A. Silverman, Huntington, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant GregoryPapadopoulos appeals, as limited by his brief, from so much of an order of the SupremeCourt, Suffolk County (Whelan, J.), dated September 20, 2012, as denied his motion forsummary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
Whether a dangerous or defective condition exists on property so as to create liabilitydepends on the particular circumstances of each case and is generally a question of factfor the jury (see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Nagin v K.E.M. Enters., Inc.,111 AD3d 901 [2013]; Acevedo v New York City Tr. Auth., 97 AD3d 515, 516[2012]). However, injuries resulting from trivial defects, not constituting a trap ornuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip, arenot actionable (see Rogers v 575Broadway Assoc., L.P., 92 AD3d 857 [2012]; Aguayo v New York City Hous.Auth., 71 AD3d 926 [2010]; Joseph v Villages at Huntington Home Owners Assn., Inc., 39AD3d 481 [2007]; Outlawv Citibank, N.A., 35 AD3d 564 [2006]).
"[T]here is no 'minimal dimension test' or per se rule that a defect must be of acertain minimum height or depth in order to be actionable" (Trincere v County ofSuffolk, 90 NY2d at 977; see Nagin v K.E.M. Enters., Inc., 111 AD3d at901). However, the defendants bear the burden of demonstrating that the defect is trivialby providing evidence including details regarding the height of the differential (seeNagin v K.E.M. Enters., Inc., 111 AD3d at 901). In determining whether a defect istrivial, 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" (Trincere v County of Suffolk, 90 NY2d at 978[internal quotation marks omitted]). In the instant case, the appellant failed to submit anyobjective measurements of the dimensions of the alleged defect (cf. Schiller v St. Francis Hosp.,Roslyn, N.Y., 108 AD3d 758 [2013]; Sokolovskaya v Zemnovitsch, 89 AD3d 918 [2011]), and itis impossible to ascertain the extent of the height [*2]differential from the photographs submitted.
Since the appellant failed to establish as a matter of law that the alleged defect wastrivial and therefore not actionable (see Kosarin v W & S Assoc., 6 AD3d 503 [2004]), theSupreme Court properly denied his motion for summary judgment dismissing thecomplaint insofar as asserted against him. Rivera, J.P., Dickerson, Chambers,Hinds-Radix and Maltese, JJ., concur.