| Green v New York City Hous. Auth. |
| 2016 NY Slip Op 01466 [137 AD3d 748] |
| March 2, 2016 |
| Appellate Division, Second Department |
[*1]
| Jackeline Green, Respondent, v New York CityHousing Authority, Appellant. |
Herzfeld & Rubin, P.C., New York, NY (David B. Hamm and Miriam Skolnikof counsel), for appellant.
Beth J. Schlossman (Feinsilver Law Group, P.C., Brooklyn, NY [H. JonathanRubinstein and David Feinsilver], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Kings County (Vaughan, J.), dated February 25, 2015,which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleged that she sustained personal injuries when she tripped and fell onthe sixth floor landing of the defendant's building. She alleged that there was a missingpatch of tile abutting the metal edge of the top of the staircase. She further alleged thather foot went into the exposed area and the front tip of her right sneaker got caught in themetal edge, causing her to fall. The plaintiff commenced this action against thedefendant, which moved for summary judgment dismissing the complaint, contendingthat the alleged defect that allegedly caused the plaintiff to fall was trivial and, therefore,not actionable. The Supreme Court denied the motion.
A property owner may not be held liable for trivial defects, not constituting a trap ornuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Louima v Jims Realty,LLC, 125 AD3d 943, 944 [2015]; Grundstrom v Papadopoulos, 117 AD3d 788 [2014]; Deviva v Bourbon St. Fine Foods& Spirit, 116 AD3d 654, 655 [2014]; Maciaszek v Sloninski, 105 AD3d 1012, 1013 [2013]). Indetermining whether a defect is trivial, the court must examine all of the facts presented,including the "width, depth, elevation, irregularity and appearance of the defect alongwith the time, place and circumstance of the injury" (Trincere v County ofSuffolk, 90 NY2d 976, 978 [1997] [internal quotation marks omitted]; see Hutchinson v Sheridan HillHouse Corp., 26 NY3d 66, 77 [2015]).
"[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 DeLaRosa v City of New York, 61 AD3d 813, 814[2009]). Photographs which fairly and accurately represent the accident site may be usedto establish that a defect is trivial and not actionable (see Santacruz v Taco Bell of Am., LLC, 128 AD3d 793[2015]; Platkin v County ofNassau, 121 AD3d 879, 880 [2014]; Schenpanski v Promise Deli, Inc., 88 AD3d 982[2011]).
[*2] Here, viewing the evidence in thelight most favorable to the plaintiff (see Pearson v Dix McBride, LLC, 63 AD3d 895 [2009]),the Supreme Court properly determined that the defendant failed to submit evidencesufficient to establish, prima facie, that the alleged defect that allegedly caused theplaintiff to fall was trivial and therefore not actionable (see Hutchinson v SheridanHill House Corp., 26 NY3d at 79; Trincere v County of Suffolk, 90 NY2d at978). 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, 853 [1985]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint. Mastro, J.P., Chambers, Miller and Hinds-Radix, JJ.,concur.