Opinion
No. 2022-03138 Index No. 605853/20
05-29-2024
David Campbell-Ramdin, appellant, v. Town of Hempstead, et al., defendants W.M.S. Realty, Inc., respondent.
Rubenstein & Rynecki, Brooklyn, NY (Harper A. Smith of counsel), for appellant. Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Melville, NY (James M. Boyce of counsel), for respondent. Smith Mazure, P.C., New York, NY (Daniel Y. Sohnen of counsel), for defendant Xia Top Nail, Inc.
Rubenstein & Rynecki, Brooklyn, NY (Harper A. Smith of counsel), for appellant.
Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Melville, NY (James M. Boyce of counsel), for respondent.
Smith Mazure, P.C., New York, NY (Daniel Y. Sohnen of counsel), for defendant Xia Top Nail, Inc.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, LILLIAN WAN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Helen Voutsinas, J.), dated April 13, 2022. The order, insofar as appealed from, granted the motion of the defendant W.M.S. Realty, Inc., for summary judgment dismissing the amended complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he tripped and fell on a sidewalk abutting a parking lot on premises owned by the defendant W.M.S. Realty, Inc. (hereinafter the defendant). The defendant moved for summary judgment dismissing the amended complaint insofar as asserted against it. In an order dated April 13, 2022, the Supreme Court, inter alia, granted the defendant's motion. The plaintiff appeals.
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" (Haber v CVS Pharmacy, Inc., 217 A.D.3d 659, 659; see Acevedo v City of Yonkers, 185 A.D.3d 762, 763). "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'" (Deviva v Bourbon St. Fine Foods & Spirit, 116 A.D.3d 654, 655, quoting Trincere v County of Suffolk, 90 N.Y.2d 976, 978). "[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; see Maldonado v 2121 Shore Condominium, 138 A.D.3d 789, 790).
Here, the defendant established that the alleged defect in the sidewalk was physically insignificant, that the accident occurred on a sunny day, and that there was nothing obstructing the plaintiff's view or path at the time of the accident. This evidence demonstrated, prima facie, that the alleged defect was trivial as a matter of law, and therefore, was not actionable (see Haber v CVS Pharmacy, Inc., 217 A.D.3d at 660; Balbo v Greenfield's Mkt. of Bethpage, LLC, 216 A.D.3d 1130, 1131). In opposition, the plaintiff failed to raise a triable issue of fact.
In light of the foregoing, the defendant's remaining contention need not be reached.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against it.
IANNACCI, J.P., CHAMBERS, WOOTEN and WAN, JJ., concur.