Opinion
Argued December 10, 1999
January 24, 2000
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Carter, J.), entered December 3, 1998, which denied their motion for summary judgment dismissing the complaint.
Kral, Clerkin, Redmond, Ryan, Perry Girvan, Mineola, N Y (Robert D. Martin of counsel), for appellants.
Sackstein, Sackstein Sackstein, LLP, Garden City, N Y (Andrew T. Cupit of counsel), for respondents.
LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Whether a dangerous or defective condition exists on real property as to create liability "depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (Guerrieri v. Summa, 193 A.D.2d 647 ; Trincere v. County of Suffolk, 90 N.Y.2d 976 ). After the defendants made out a prima facie case for summary judgment, the plaintiffs adduced sufficient evidence to raise issues of fact as to whether the alleged defect in the pavement was a proximate cause of the accident in which the plaintiff Jimmy L. Green was injured (see, Romano v. Westbury Prop. Inv. Co., 240 A.D.2d 388 ; Baquero v. Youngs Mem. Cemetery, 248 A.D.2d 497 ). There are also questions as to whether the defendants had actual or constructive notice of the alleged defect (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836 ; Romano v. Westbury Pro. Inv. Co., 240 A.D.2d 388; Katsoris v. Waldbaum, Inc., 241 A.D.2d 511 ), and whether the alleged defect was trivial (see, Trincere v. County of Suffolk, supra).
We reject the plaintiffs' contention that the imposition of sanctions is warranted (see, 22 NYCRR 130-1.1).
BRACKEN, J.P., THOMPSON, SULLIVAN, and KRAUSMAN, JJ., concur.