Opinion
2011-11-1
Terry FREAS, respondent,v.TILLES CENTER, et al., appellants.
Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), for appellants.Christopher S. Olson, Huntington, N.Y., for respondent.
Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), for appellants.Christopher S. Olson, Huntington, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered February 14, 2011, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
Generally, the issue of whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury ( see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489; DeLaRosa v. City of New York, 61 A.D.3d 813, 877 N.Y.S.2d 439; Berry v. Rocking Horse Ranch Corp., 56 A.D.3d 711, 868 N.Y.S.2d 270; Hahn v. Wilhelm, 54 A.D.3d 896, 898, 865 N.Y.S.2d 240). Property owners (and tenants) 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 Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489; DeLaRosa v. City of New York, 61 A.D.3d at 813, 877 N.Y.S.2d 439).
There is no “minimum dimension test or per se rule” that the condition must be of a certain height or depth 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). Rather, in determining whether a defect is trivial as a matter of law, the court must examine the facts presented, including the “width, depth, elevation, irregularity, and appearance of the defect along with the ‘time, place, and circumstance[s]’ of the injury” ( id. at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489, quoting Caldwell v. Village of Is. Park, 304 N.Y. 268, 274, 107 N.E.2d 441; see DeLaRosa v. City of New York, 61 A.D.3d at 813–814, 877 N.Y.S.2d 439; Hahn v. Wilhelm, 54 A.D.3d at 898, 865 N.Y.S.2d 240).
Here, under the circumstances presented, the defendants failed to make a prima facie showing that the alleged defect was trivial as a matter of law and, thus, not actionable ( see DeLaRosa v. City of New York, 61 A.D.3d at 814, 877 N.Y.S.2d 439; Boxer v. Metropolitan Transp. Auth., 52 A.D.3d 447, 448, 859 N.Y.S.2d 709). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;
Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
The defendants' remaining contentions, which pertain to affidavits submitted by the plaintiff in opposition to the motion, need not be considered in light of our determination.
Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.