Opinion
01-14-2015
Maureen ADLER, respondent, v. QPI–VIII, LLC, et al., appellants.
McGaw, Alventosa & Zajac, Jericho, N.Y. (Joseph Horowitz of counsel), for appellants. Vel Belushin, P.C., Brooklyn, N.Y. (Georgette Hamboussi of counsel), for respondent.
McGaw, Alventosa & Zajac, Jericho, N.Y. (Joseph Horowitz of counsel), for appellants.
Vel Belushin, P.C., Brooklyn, N.Y. (Georgette Hamboussi of counsel), for respondent.
RANDALL T. ENG, P.J., WILLIAM F. MASTRO, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
Opinion In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Butler, J.), entered February 14, 2014, which denied their motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is 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 ; Martyniak v. Charleston Enters., LLC, 118 A.D.3d 679, 987 N.Y.S.2d 413 ; Freas v. Tilles Ctr., 89 A.D.3d 680, 681, 931 N.Y.S.2d 708 ). However, property owners 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 ; Martyniak v. Charleston Enters., LLC, 118 A.D.3d at 679, 987 N.Y.S.2d 413 ; Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 927, 897 N.Y.S.2d 239 ; DeLaRosa v. City of New York, 61 A.D.3d 813, 877 N.Y.S.2d 439 ). There is no “minimal 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 [internal quotation marks omitted]; see Martyniak v. Charleston Enters., LLC, 118 A.D.3d at 679, 987 N.Y.S.2d 413 ). 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 ). “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 Zelichenko v. 301 Oriental Blvd., LLC, 117 A.D.3d 1038, 1039, 986 N.Y.S.2d 615, lv. granted 24 N.Y.3d 904, 2014 WL 4548565 ; 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 defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony, as well as the photographs of the subject step, which the plaintiff admitted fairly and accurately depicted the step and the “clump” that allegedly caused her to trip and fall. The evidence, and in particular the photographs, established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and, therefore, was not actionable (see Zelichenko v. 301 Oriental Blvd., LLC, 117 A.D.3d at 1039, 986 N.Y.S.2d 615 ; Nunez v. Morwood Dry Cleaners, 116 A.D.3d 831, 832, 983 N.Y.S.2d 424 ; Abalo v. Santorelli, 115 A.D.3d 777, 778, 982 N.Y.S.2d 332 ; Nussbaum v. Broken Down Valise Pub, 115 A.D.3d 718, 719, 981 N.Y.S.2d 591 ; Slattery v. Sachem N. High Sch., 114 A.D.3d 927, 928, 980 N.Y.S.2d 843 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Koznesoff v. First Hous. Co., Inc., 74 A.D.3d 1027, 1028, 904 N.Y.S.2d 101 ).
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.
In view of the foregoing, we do not reach the parties' remaining contentions.