| Ortiz v 82-90 Broadway Realty Corp. |
| 2014 NY Slip Op 03814 [117 AD3d 1016] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| Jhonny Ortiz, an Infant, by His Mother and NaturalGuardian, Luisa Ortiz, Appellant, v 82-90 Broadway Realty Corporation,Respondent. |
Roura & Melamed (Alexander J. Wulwick, New York, N.Y., of counsel), forappellant.
Farber, Brocks & Zane, LLP, Garden City, N.Y. (Tracy L. Frankel ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Taylor, J.), entered November 21, 2012,which granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is denied.
The plaintiff allegedly tripped and fell over a defect in a sidewalk abutting thedefendant's premises. The plaintiff commenced this action to recover damages forpersonal injuries. The defendant moved for summary judgment dismissing the complaint,contending that the alleged defect at issue was trivial, and did not constitute a trap ornuisance, and was, thus, not actionable. The defendant further contended that, in anyevent, it did not create the alleged defect or have actual or constructive notice thereof.The Supreme Court granted the motion.
"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" (Guidone v Town ofHempstead, 94 AD3d 1054, 1055 [2012]; see Rogers v 575 Broadway Assoc., L.P., 92 AD3d 857,858 [2012]; Sokolovskaya vZemnovitsch, 89 AD3d 918, 919 [2011]). 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 976, 978[1997] [internal quotation marks omitted]; see Perez v 655 Montauk, LLC, 81 AD3d 619, 619-620[2011]; Fisher v JRMR RealtyCorp., 63 AD3d 677, 678 [2009]).
Here, the evidence submitted by the defendant, including the transcripts of thedeposition testimony of the parties and photographs of the sidewalk, was insufficient todemonstrate, prima facie, that the alleged defect was trivial, and did not constitute a trapor nuisance, and was, therefore, not actionable (see Brenner v Herricks Union Free Sch. Dist., 106 AD3d766, 767 [2013]; Perez v655 Montauk, LLC, 81 AD3d 619 [2011]; Corrado v City of New York, 6 AD3d 380 [2004]; see also Boxer v MetropolitanTransp. Auth., 52 AD3d 447 [2008]; Portanova v Kantlis, 39 AD3d 731 [2007]). Moreover, the[*2]defendant failed to demonstrate, prima facie, that itlacked constructive notice of the alleged defect (see Bolloli v Waldbaum, Inc., 71 AD3d 618, 619-620[2010]). Since the defendant failed to meet its initial burden as the movant, it is notnecessary to review the sufficiency of the plaintiff's opposition papers (see Winegradv New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Accordingly, the Supreme Court should have denied the defendant's motion forsummary judgment dismissing the complaint. Balkin, J.P., Dickerson, Chambers andHall, JJ., concur.