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Cruz v. Deno's Wonder Wheel Park

Appellate Division of the Supreme Court of New York, Second Department
Sep 18, 2002
297 A.D.2d 653 (N.Y. App. Div. 2002)

Opinion

2001-02253

Submitted March 28, 2002.

September 18, 2002.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Mason, J.), dated January 29, 2001, which granted the defendants' motion for summary judgment dismissing the complaint.

Jamie C. Rosenberg, New York, N.Y., for appellant.

Bréa Yankowitz Sosin, P.C., Floral Park, N.Y. (Patrick J. Bréa and Glenn G. Gunsten of counsel), for respondents.

Before: NANCY E. SMITH, J.P., CORNELIUS J. O'BRIEN, LEO F. McGINITY, SANDRA L. TOWNES, JJ.


ORDERED that the order is affirmed, with costs.

The defendants' motion for summary judgment was properly granted. On June 20, 1997, the plaintiff was injured when she allegedly tripped and fell on uneven pavement while walking on the grounds of the defendant Deno's Wonder Wheel Park (hereinafter Deno's). Photographs taken by the plaintiff on the day of the incident reveal a readily apparent, but shallow, depression in the pavement which, according to the general manager of Deno's, measured 1/8 to 1/4 inch in depth. After considering the dimensions and appearance of the alleged defect along with the relevant circumstances of the injury (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 978), the Supreme Court determined that the defect was open and apparent, possessed none of the characteristics of a trap or snare, and was too trivial to be actionable. We agree that the defendants established their prima facie entitlement to judgment as a matter of law (see Trincere v. County of Suffolk, supra at 977-978; Hargrove v. Baltic Estates, 278 A.D.2d 278; Neumann v. Senior Citizens Ctr., 273 A.D.2d 452, 453; Marinaccio v. LeChambord Rest., 246 A.D.2d 514, 515).

The affidavit of the plaintiff's expert failed to raise a triable issue of fact. The plaintiff's expert did not reveal when he performed his on-site inspection, did not compare the results of the inspection with the photographs he reviewed, and did not state that the condition of the alleged defect at the time of his inspection was the same as at the time of the accident (see Santiago v. United Artists Communications, 263 A.D.2d 407).

SMITH, J.P., O'BRIEN, McGINITY and TOWNES, JJ., concur.


Summaries of

Cruz v. Deno's Wonder Wheel Park

Appellate Division of the Supreme Court of New York, Second Department
Sep 18, 2002
297 A.D.2d 653 (N.Y. App. Div. 2002)
Case details for

Cruz v. Deno's Wonder Wheel Park

Case Details

Full title:LORNA CRUZ, appellant, v. DENO'S WONDER WHEEL PARK, et al., respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 18, 2002

Citations

297 A.D.2d 653 (N.Y. App. Div. 2002)
747 N.Y.S.2d 242

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