Opinion
2021-04007 Index 602323/17
06-23-2021
Joan K. Boesch, respondent, v. Comsewogue School District, appellant.
Devitt Spellman Barrett, LLP, Smithtown, NY (John M. Denby and Christi M. Kunzig of counsel), for appellant. Schwartzapfel Lawyers, PC, Garden City, NY (David N. Sloan of counsel), for respondent.
Devitt Spellman Barrett, LLP, Smithtown, NY (John M. Denby and Christi M. Kunzig of counsel), for appellant.
Schwartzapfel Lawyers, PC, Garden City, NY (David N. Sloan of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS-RADIX, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated October 10, 2019. The order denied the defendant's 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.
In February 2017, the plaintiff commenced this action against the defendant to recover damages for personal injuries she alleged that she sustained in November 2016 when she tripped and fell on an uneven sidewalk abutting the defendant's school building in Suffolk County. According to the plaintiff, at the time she stubbed her toe on the "little lip" in the sidewalk and fell to the ground, it was a clear day, she was looking straight ahead, and no one was walking near her. The defendant moved for summary judgment dismissing the complaint, contending that, even assuming that the lip in the sidewalk consisted of a one-inch height differential, the alleged defect the uneven sidewalk was trivial, and thus, not actionable as a matter of law. The Supreme Court denied the motion. The defendant appeals. We reverse.
A property owner 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 976, 977; Melia v 50 Ct. St. Assoc., 153 A.D.3d 703, 704). "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. Only then does the burden shift to the plaintiff to establish an issue of fact" (Hutchinson v Sheridan Hill House Corp., 26 N.Y.3d 66, 79). In determining whether a defect is trivial, 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 [internal quotation marks omitted]; see Losito v JP Morgan Chase & Co., 72 A.D.3d 1033, 1034). There is no "minimal dimension test" or "per se rule" that the condition must be of a certain height or depth in order to be actionable (Trincere v County of Suffolk, 90 N.Y.2d at 977 [internal quotation marks omitted]). "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; see Baldasano v Long Is. Univ., 143 A.D.3d 933, 934).
Here, in support of its motion, the defendant submitted, inter alia, the transcripts of the plaintiff's testimony from a hearing pursuant to General Municipal Law § 50-h and her deposition testimony as well as photographs of the alleged defective sidewalk, which established, prima facie, that the height differential between the two slabs of abutting concrete that constituted the sidewalk was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks it posed (see Hutchinson v Sheridan Hill House Corp., 26 N.Y.3d at 79; Melia v 50 Ct. St. Assoc., 153 A.D.3d at 704).
In opposition, the plaintiff failed to raise a triable issue of fact. Given the characteristics of the defect and the surrounding circumstances, the alleged defective condition is trivial as a matter of law (see Melia v 50 Ct. St. Assoc., 153 A.D.3d at 704; see also Baldasano v Long Is. Univ., 143 A.D.3d at 934).
The plaintiff's remaining contentions, raised for the first time on appeal, are not properly before this Court.
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
CHAMBERS, J.P., HINDS-RADIX, DUFFY and IANNACCI, JJ., concur.