Opinion
2015-03253 Index No. 27053/10.
03-02-2016
Jackeline GREEN, respondent, v. NEW YORK CITY HOUSING AUTHORITY, appellant.
Herzfeld & Rubin, P.C., New York, N.Y. (David B. Hamm and Miriam Skolnik of counsel), for appellant. Beth J. Schlossman (Feinsilver Law Group, P.C., Brooklyn, N.Y. [H. Jonathan Rubinstein and David Feinsilver], of counsel), for respondent.
Herzfeld & Rubin, P.C., New York, N.Y. (David B. Hamm and Miriam Skolnik of counsel), for appellant.
Beth J. Schlossman (Feinsilver Law Group, P.C., Brooklyn, N.Y. [H. Jonathan Rubinstein and David Feinsilver], of counsel), for respondent.
Opinion
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated February 25, 2015, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff alleged that she sustained personal injuries when she tripped and fell on the sixth floor landing of the defendant's building. She alleged that there was a missing patch of tile abutting the metal edge of the top of the staircase. She further alleged that her foot went into the exposed area and the front tip of her right sneaker got caught in the metal edge, causing her to fall. The plaintiff commenced this action against the defendant, which moved for summary judgment dismissing the complaint, contending that the alleged defect that allegedly caused the plaintiff to fall was trivial and, therefore, not actionable. The Supreme Court denied the motion.
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 Louima v. Jims Realty, LLC, 125 A.D.3d 943, 944, 5 N.Y.S.3d 144; Grundstrom v. Papadopoulos, 117 A.D.3d 788, 986 N.Y.S.2d 167; Deviva v. Bourbon St. Fine Foods & Spirit, 116 A.D.3d 654, 655, 983 N.Y.S.2d 295; Maciaszek v. Sloninski, 105 A.D.3d 1012, 1013, 963 N.Y.S.2d 382). 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 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802, 41 N.E.3d 766).
“[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, 665 N.Y.S.2d 615, 688 N.E.2d 489; see DeLaRosa v. City of New York, 61 A.D.3d 813, 814, 877 N.Y.S.2d 439). Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable (see Santacruz v. Taco Bell of Am., LLC, 128 A.D.3d 793, 10 N.Y.S.3d 122; Platkin v. County of Nassau, 121 A.D.3d 879, 880, 994 N.Y.S.2d 636; Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 931 N.Y.S.2d 650).
Here, viewing the evidence in the light most favorable to the plaintiff (see Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53), the Supreme Court properly determined that the defendant failed to submit evidence sufficient to establish, prima facie, that the alleged defect that allegedly caused the plaintiff to fall was trivial and therefore not actionable (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 79, 19 N.Y.S.3d 802, 41 N.E.3d 766; Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489). Since the defendant failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.