Opinion
06-08-2016
Karen BAIRD, respondent, v. FOUR WINDS HOSPITAL, et al., appellants.
Phelan, Phelan & Danek, LLP, Albany, NY (Ryan A. Perry of counsel), for appellants. Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for respondent.
Phelan, Phelan & Danek, LLP, Albany, NY (Ryan A. Perry of counsel), for appellants.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered February 17, 2015, as denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when she tripped and fell on a crack in a sidewalk on the defendants' property. The plaintiff thereafter commenced this action against the defendants, and the defendants moved for summary judgment dismissing the complaint, contending that the alleged defect was trivial as a matter of law 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 or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Mazza v. Our Lady of Perpetual Help R.C. Church, 134 A.D.3d 1073, 1074, 24 N.Y.S.3d 98 ; Louima v. Jims Realty, LLC, 125 A.D.3d 943, 944, 5 N.Y.S.3d 144 ). In determining whether a defect is trivial, the court must examine all the facts presented, including “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” (Trincere v. County of Suffolk, 90 N.Y.2d 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 ). “[T]here is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” (Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted] ).
Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). In support of their motion, the defendants submitted, inter alia, transcripts of the deposition testimony of the plaintiff and the Director of Plans Operations of Four Winds Hospital, the affidavit of their expert witness, and various photographs that the plaintiff claimed accurately represented the condition that allegedly caused her fall. Viewed in the light most favorable to the plaintiff as the nonmovant (see Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 895, 883 N.Y.S.2d 53 ), the evidence submitted by the defendants failed to eliminate triable issues of fact as to the dimensions of the defect (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 77–78, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; Mscichowski v. 601 BBA, LLC, 134 A.D.3d 996, 997, 22 N.Y.S.3d 506 ). Moreover, taking into consideration all of the evidence presented, including time, place, and circumstances of the plaintiff's fall, it cannot be said that the defect was trivial as a matter of law and therefore not actionable (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 ).
Based on the foregoing, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.