| Zelichenko v 301 Oriental Blvd., LLC |
| 2014 NY Slip Op 03829 [117 AD3d 1038] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| Matvey Zelichenko, Respondent, v 301Oriental Boulevard, LLC, Appellant. |
Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (Lisa L.Gokhulsingh of counsel), for appellant.
Wingate, Russotti, Shapiro & Halperin, LLP, New York, N.Y.(William P. Hepner and David M. Schwarz of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Kings County (Martin, J.), entered April 16, 2013, whichdenied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is granted.
The plaintiff allegedly was injured when he fell while descending stairs in anapartment building owned by the defendant. The plaintiff attributed his fall to a chip inthe edge of the second step from the bottom of the five-step stairway. The defendantmoved for summary judgment dismissing the complaint on the ground that, as a matter oflaw, the chip was a nonactionable trivial defect. The Supreme Court denied themotion.
"[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 Grosskopf v 8320 Parkway Towers Corp., 88 AD3d765 [2011]; Perez v 655Montauk, LLC, 81 AD3d 619 [2011]; Aguayo v New York City Hous. Auth., 71 AD3d 926, 927[2010]; Bolloli v Waldbaum,Inc., 71 AD3d 618 [2010]). "However, a property owner may not be held liablein damages for trivial defects, not constituting a trap or nuisance, over which a pedestrianmight merely stumble, stub his or her toes, or trip" (Aguayo v New York City Hous.Auth., 71 AD3d at 927; seeJoseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481, 482[2007]; Outlaw v Citibank,N.A., 35 AD3d 564 [2006]). In determining whether a defect is trivial as amatter of law, 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,quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]; seeGrosskopf v 8320 Parkway Towers Corp., 88 AD3d at 765). "[T]here is no 'minimaldimension test' or per se rule that a defect must be of a certain minimum height or depthin order to be actionable" (Trincere v County of Suffolk, 90 NY2d at 977)."Photographs which fairly and accurately represent the accident site may be used toestablish that a defect is trivial and not actionable" (Schenpanski v Promise Deli,Inc., [*2]88 AD3d 982, 984 [2011]; see Aguayo vNew York City Hous. Auth., 71 AD3d at 927; Fisher v JRMR Realty Corp., 63 AD3d 677, 678 [2009]; Outlaw v Citibank, N.A., 35AD3d 564, 565 [2006]; Maiello v Eastchester Union Free School Dist., 8 AD3d536, 536-537 [2004]).
Here, the defendant met its prima facie burden of establishing its entitlement tojudgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony,photographs of the subject staircase, and the affidavit of its expert. The evidencerevealed that the alleged defect consisted of a chip measuring about 3
Accordingly, the Supreme Court should have granted the defendant's motion forsummary judgment dismissing the complaint. Mastro, J.P., Roman, Hinds-Radix andLaSalle, JJ., concur.