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Zelichenko v. 301 Oriental Boulevard, LLC

Supreme Court, Appellate Division, Second Department, New York.
May 28, 2014
117 A.D.3d 1038 (N.Y. App. Div. 2014)

Summary

In Zelichenko, the plaintiff was walking down a set of stairs when his foot "got caught" as he stepped on to the nosing.

Summary of this case from Katz v. 260 Park Ave. S. Condo. Assocs.

Opinion

2014-05-28

Matvey ZELICHENKO, respondent, v. 301 ORIENTAL BOULEVARD, LLC, appellant.

Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (Lisa L. Gokhulsingh of counsel), for appellant. Wingate, Russotti, Shapiro & Halperin, LLP, New York, N.Y. (William P. Hepner and David M. Schwarz of counsel), for respondent.



Gannon, Rosenfarb, Balletti & Drossman, New York, N.Y. (Lisa L. Gokhulsingh of counsel), for appellant. Wingate, Russotti, Shapiro & Halperin, LLP, New York, N.Y. (William P. Hepner and David M. Schwarz of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Martin, J.), entered April 16, 2013, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly was injured when he fell while descending stairs in an apartment building owned by the defendant. The plaintiff attributed his fall to a chip in the edge of the second step from the bottom of the five-step stairway. The defendant moved for summary judgment dismissing the complaint on the ground that, as a matter of law, the chip was a nonactionable trivial defect. The Supreme Court denied the motion.

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Grosskopf v. 8320 Parkway Towers Corp., 88 A.D.3d 765, 930 N.Y.S.2d 661;Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 916 N.Y.S.2d 137;Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 927, 897 N.Y.S.2d 239;Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 896 N.Y.S.2d 400). “However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” ( Aguayo v. New York City Hous. Auth., 71 A.D.3d at 927, 897 N.Y.S.2d 239;see Joseph v. Villages at Huntington Home Owners Assn., Inc., 39 A.D.3d 481, 482, 835 N.Y.S.2d 231;Outlaw v. Citibank, N.A., 35 A.D.3d 564, 826 N.Y.S.2d 642). 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” ( Trincere v. County of Suffolk, 90 N.Y.2d 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 Grosskopf v. 8320 Parkway Towers Corp., 88 A.D.3d at 765, 930 N.Y.S.2d 661). “[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). “Photographs 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;see Aguayo v. New York City Hous. Auth., 71 A.D.3d at 927, 897 N.Y.S.2d 239; Fisher v. JRMR Realty Corp., 63 A.D.3d 677, 678, 880 N.Y.S.2d 187;Outlaw v. Citibank, N.A., 35 A.D.3d 564, 565, 826 N.Y.S.2d 642;Maiello v. Eastchester Union Free School Dist., 8 A.D.3d 536, 536–537, 778 N.Y.S.2d 716).

Here, the defendant met its prima facie burden of establishing its entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony, photographs of the subject staircase, and the affidavit of its expert. The evidence revealed that the alleged defect consisted of a chip measuring about 3 1/4 inches wide and about 1/2 inch deep, located almost entirely on the edge of the second to last step from the bottom, and not on the walking surface. Upon an examination of all of the facts presented, we find that the alleged defect was trivial, did not possess the characteristics of a trap or nuisance, and, therefore, was not actionable ( see Maciaszek v. Sloninski, 105 A.D.3d 1012, 1013, 963 N.Y.S.2d 382;Grosskopf v. 8320 Parkway Towers Corp., 88 A.D.3d at 766, 930 N.Y.S.2d 661;Chillemi v. National Birchwood Corp., 16 A.D.3d 612, 612–613, 792 N.Y.S.2d 551). In opposition, the plaintiff failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;Grosskopf v. 8320 Parkway Towers Corp., 88 A.D.3d at 765, 930 N.Y.S.2d 661).

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.


Summaries of

Zelichenko v. 301 Oriental Boulevard, LLC

Supreme Court, Appellate Division, Second Department, New York.
May 28, 2014
117 A.D.3d 1038 (N.Y. App. Div. 2014)

In Zelichenko, the plaintiff was walking down a set of stairs when his foot "got caught" as he stepped on to the nosing.

Summary of this case from Katz v. 260 Park Ave. S. Condo. Assocs.

In Zelichenko, the plaintiff was walking down a set of stairs when his foot "got caught" as he stepped on to the nosing.

Summary of this case from Katz v. 260 Park Ave. S. Condo. Assocs.
Case details for

Zelichenko v. 301 Oriental Boulevard, LLC

Case Details

Full title:Matvey ZELICHENKO, respondent, v. 301 ORIENTAL BOULEVARD, LLC, appellant.

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: May 28, 2014

Citations

117 A.D.3d 1038 (N.Y. App. Div. 2014)
117 A.D.3d 1038
2014 N.Y. Slip Op. 3829

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