Opinion
CA 02-01904
December 30, 2002.
Appeal from an order of Supreme Court, Oneida County (Shaheen, J.), entered April 18, 2002, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint.
FRANK POLICELLI, UTICA, FOR PLAINTIFF-APPELLANT.
FIX SPINDELMAN BROVITZ GOLDMAN, P.C., SYRACUSE (SANDRA J. SABOURIN OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying defendant's motion and reinstating the complaint and as modified the order is affirmed without costs.
Memorandum:
Gloria Zammiello (plaintiff) was injured when she fell in a common area of a mall owned by defendant. Plaintiff failed to brief the issue of the denial of plaintiffs' motion to preclude defendant from introducing certain evidence at trial and therefore has abandoned her appeal with respect to that issue ( see Baliva v. State Farm Mut. Auto. Ins. Co. [appeal No. 2], 286 A.D.2d 953, 955). We conclude that Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint. Although defendant established as a matter of law that, if plaintiff tripped on a particular joint in the mall floor between two types of tiling, there was no dangerous or defective condition at that spot ( see generally Trincere v. County of Suffolk, 90 N.Y.2d 976, 977), plaintiffs raised an issue of fact through the affidavit of their expert whether the general condition of the mall floor where plaintiff fell was a "`patchwork quilt' of elevations." In light of the facts and circumstances of the case, "`including the width, depth, elevation, irregularity and appearance of the defect[s] along with the "time, place and circumstance" of the injury,'" the court should have "determined that there was an issue of fact whether a dangerous or defective condition existed on the [mall floor]" ( Feneck v. First Union Real Estate Equity Mtge. Invs. [appeal No. 2], 266 A.D.2d 916, 917).
We therefore modify the order by denying defendant's motion and reinstating the complaint.