Law Office of Stefano A. Filippazzo, P.C., Brooklyn, N.Y. (Louis A. Badolato of counsel), for appellants.

Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Daniel S. Kotler of counsel), for respondents.

LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants City of New York and New York City Department of Education which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against the defendant New York City Department of Education, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiffs payable by the defendant New York City Department of Education.

The plaintiff Julio Mejias (hereinafter the plaintiff), who was employed as a building manager for nonparty Temco Service Industries, allegedly was injured when he slipped and fell on an exterior step outside the lunchroom delivery entrance at Curtis Estabrook School. The plaintiff, and his wife suing derivatively, commenced this action against the defendants City of New York and the New York City Department of Education (hereinafter the DOE, and together with the City, the defendants), and another defendant. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them, contending, inter alia, that they were not liable for the plaintiff's injuries because a storm was in progress when the action occurred, the alleged defect in the step was trivial as a matter of law, and the plaintiff's injuries were caused by the allegedly defective condition he was responsible for repairing. In addition, the defendants contended that the City was not a proper party to this action because it did not operate or control the school. The Supreme Court granted the defendants' motion, and the plaintiff appeals.

"Under the so-called ‘storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" ( Marchese v. Skenderi , 51 A.D.3d 642, 642, 856 N.Y.S.2d 680 ; see Solazzo v. New York City Tr. Auth. , 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 ; Pankratov v. 2935 OP, LLC, 160 A.D.3d 757, 758, 75 N.Y.S.3d 208 ). Here, although it is undisputed that a storm was in progress at the time of the plaintiff's accident, the defendants failed to eliminate triable issues of fact as to whether an allegedly defective condition with the step caused or contributed to the plaintiff's injuries (see Indarjali v. Indarjali , 132 A.D.3d 1277, 1277, 17 N.Y.S.3d 524 ; Martinez v. 1261 Realty Co., LLC , 121 A.D.3d 955, 956, 995 N.Y.S.2d 581 ; Vosper v. Fives 160th, LLC, 110 A.D.3d 544, 545, 973 N.Y.S.2d 589 ; Velez v. 955 Tenants Stockholders, Inc. , 66 A.D.3d 1005, 1006, 887 N.Y.S.2d 646 ). In support of their motion, the defendants submitted transcripts of the plaintiff's testimony at a hearing pursuant to General Municipal Law § 50–h and deposition testimony, in which the plaintiff attributed his accident to both wetness on the step from a mixture of rain and sleet and the alleged unevenness of the step. There may be more than one proximate cause of an accident, and here, the defendants failed to establish, prima facie, that the alleged unevenness of the step was not a proximate cause of the plaintiff's accident (see Martinez v. 1261 Realty Co., LLC , 121 A.D.3d at 956, 995 N.Y.S.2d 581 ; Gestetner v. Teitelbaum , 52 A.D.3d 778, 778, 860 N.Y.S.2d 208 ; Scala v. Scala, 31 A.D.3d 423, 424–425, 818 N.Y.S.2d 151 ).

Nevertheless, the defendants contend that the alleged defect in the step was trivial as a matter of law. "A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect, or the surrounding circumstances do not increase the risks it poses" ( Hutchinson v. Sheridan Hill House Corp. , 26 N.Y.3d 66, 79, 19 N.Y.S.3d 802, 41 N.E.3d 766 ). "In determining whether a defect is trivial as a matter 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 and circumstance of the injury" ( Hopkins v. St. Agnes R.C. Church at Rockville Ctr. , 160 A.D.3d 705, 706, 71 N.Y.S.3d 362 [citation and internal quotation marks omitted]; 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 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). Here, the defendants failed to establish, prima facie, that the alleged defect in the step was trivial as a matter of law (see Hutchinson v. Sheridan Hill House Corp. , 26 N.Y.3d at 82–83, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; Parham v. New York City Hous. Auth. , 177 A.D.3d 446, 447, 110 N.Y.S.3d 301 ; Coker v. McMillan , 177 A.D.3d 680, 681, 112 N.Y.S.3d 272 ). Although the plaintiff testified that the downward curvature of the step spanned approximately five feet, the width of the step, the defendants did not present any expert testimony or testimony from their own witnesses as to the extent of the unevenness or downward curvature of the step (see Munasca v. Morrison Mgt. LLC , 111 A.D.3d 564, 564, 975 N.Y.S.2d 402 ). Further, the defendants submitted the DOE's 2010–2011 building condition assessment survey for the school, which indicated that the step was in "poor" condition, described the deficiency as "stone deteriorated substrate," and noted "replace substrate and reset" as a potential action. Although "[p]hotographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable" ( Schenpanski v. Promise Deli, Inc. , 88 A.D.3d 982, 984, 931 N.Y.S.2d 650 ), the only photograph submitted by the defendants in their moving papers was a small, black-and-white photograph of the step in the building condition assessment survey for the school, which was indistinct and failed to establish that the alleged defect was trivial as a matter of law (see Hutchinson v. Sheridan Hill House Corp. , 26 N.Y.3d at 82–83, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; Pitt v. New York City Tr. Auth. , 146 A.D.3d 826, 828, 44 N.Y.S.3d 525 ; Deviva v. Bourbon St. Fine Foods & Spirit , 116 A.D.3d 654, 655, 983 N.Y.S.2d 295 ; Munasca v. Morrison Mgt. LLC , 111 A.D.3d at 564, 975 N.Y.S.2d 402 ).

The defendants also failed to demonstrate their prima facie entitlement to judgment as a matter of law on the ground that the plaintiff was injured by the condition he was responsible for repairing (see Torres v. Board of Educ. of the City of N.Y. , 175 A.D.3d 1584, 1586, 109 N.Y.S.3d 346 ; Arcabascio v. Bentivegna , 142 A.D.3d 1120, 1121, 38 N.Y.S.3d 72 ; Rosciano v. Royal Farms , 236 A.D.2d 599, 599, 654 N.Y.S.2d 39 ). The defendants failed to eliminate all triable issues of fact as to whether the plaintiff was responsible for repairing the allegedly defective step, as the plaintiff testified at his deposition that such an allegedly major repair would have to be referred to the New York City School Construction Authority. Further, the defendants failed to establish, prima facie, that the plaintiff's responsibility for cordoning off allegedly defective conditions, such as the step, prohibited the plaintiff from recovery, or that cordoning off the step was possible under the circumstances of this case.

Therefore, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against the DOE, regardless of the sufficiency of the plaintiffs' papers submitted in opposition (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

However, the defendants established, prima facie, that the City is entitled to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that this action involved an accident that occurred on public school premises, and that the City did not operate, maintain, or control the school (see Dilligard v. City of New York , 170 A.D.3d 955, 957, 96 N.Y.S.3d 306 ; Mathis v. Board of Educ. of City of N.Y. , 126 A.D.3d 951, 953, 7 N.Y.S.3d 182 ; Cohen v. City of New York , 119 A.D.3d 725, 725, 989 N.Y.S.2d 296 ; Miner v. City of New York , 78 A.D.3d 669, 670, 911 N.Y.S.2d 109 ). In opposition, the plaintiffs failed to raise a triable issue of fact as to the City's liability. Therefore, we agree with the Supreme Court's determination to grant that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the City.

AUSTIN, J.P., MALTESE, LASALLE and BRATHWAITE NELSON, JJ., concur.