Summary
holding summary judgment was not warranted in trip and fall action as there were factual issues as to whether shallow depression on which plaintiff fell posed a tripping hazard
Summary of this case from Thomas v. Dever Props., LLCOpinion
1422
August 8, 2002.
Order, Supreme Court, New York County (Robert Lippmann, J.), entered December 13, 2001, which granted the motion of defendant Seashore Restaurant Corp. and the cross motion of defendant City of New York for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion and cross motion denied and the complaint reinstated.
ADAM GARTH, for plaintiffs-appellants.
GEORGE GUTWIRTH, SIM R. SHAPIRO for defendants-respondents.
Before: Tom, J.P., Buckley, Ellerin, Wallach, Gonzalez, JJ.,
Plaintiff allegedly tripped and fell in a parking lot and onto an adjacent sidewalk as she prepared to enter her car. She claimed that she had tripped in a shallow depression, or a "dip," which constituted a trap. Her expert concluded that the location of the dip, where a person leaving a busy parking area might be focused more on traffic rather than looking at the ground, might have increased the hazard, especially if the dip was hard to see. Finding that the submitted evidence demonstrated that the defect, if any, was only trivial, the motion court dismissed the action. However, we find factual issues regarding whether the dip, even if trivial, presented a hazard due to factors which made it difficult to detect (Tesak v. Marine Midland Bank, N.A., 254 A.D.2d 717). As we have stated elsewhere, "even a trivial defect may constitute a snare or a trap. . . . While a gradual, shallow depression is generally regarded as trivial . . . the presence of an edge which poses a tripping hazard renders the defect nontrivial. . . . Furthermore, factors which make the defect difficult to detect present a situation in which an assessment of the hazard in view of `the peculiar facts and circumstances' [citations omitted] is appropriate . . . " (Argenio v. Metropolitan Transit Authority, 277 A.D.2d 165, 166). Trial is warranted on this issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.