Opinion
2014-05-14
Josephine GRUNDSTROM, respondent, v. Gregory PAPADOPOULOS, appellant, et al., defendants (and a third-party action).
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Harold A. Campbell of counsel), for appellant. Laurence A. Silverman, Huntington, N.Y., for respondent.
Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Harold A. Campbell of counsel), for appellant. Laurence A. Silverman, Huntington, N.Y., for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the defendant Gregory Papadopoulos appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated September 20, 2012, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Whether a dangerous or defective condition exists on property so as to create liability depends on the particular circumstances of each case and is generally a question of fact for the jury ( see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;Nagin v. K.E.M. Enters., Inc., 111 A.D.3d 901, 975 N.Y.S.2d 753;Acevedo v. New York City Tr. Auth., 97 A.D.3d 515, 516, 947 N.Y.S.2d 599). However, injuries resulting from trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip, are not actionable ( see Rogers v. 575 Broadway Assoc., L.P., 92 A.D.3d 857, 939 N.Y.S.2d 517;Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 897 N.Y.S.2d 239;Joseph v. Villages at Huntington Home Owners Assn., Inc., 39 A.D.3d 481, 835 N.Y.S.2d 231;Outlaw v. Citibank, N.A., 35 A.D.3d 564, 826 N.Y.S.2d 642).
“[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 Nagin v. K.E.M. Enters., Inc., 111 A.D.3d at 901, 975 N.Y.S.2d 753). However, the defendants bear the burden of demonstrating that the defect is trivial by providing evidence including details regarding the height of the differential ( see Nagin v. K.E.M. Enters., Inc., 111 A.D.3d at 901, 975 N.Y.S.2d 753). 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 at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted] ). In the instant case, the appellant failed to submit any objective measurements of the dimensions of the alleged defect ( cf. Schiller v. St. Francis Hosp., Roslyn, N.Y., 108 A.D.3d 758, 970 N.Y.S.2d 241;Sokolovskaya v. Zemnovitsch, 89 A.D.3d 918, 933 N.Y.S.2d 90), and it is impossible to ascertain the extent of the height differential from the photographs submitted.
Since the appellant failed to establish as a matter of law that the alleged defect was trivial and therefore not actionable ( see Kosarin v. W & S Assoc., 6 A.D.3d 503, 774 N.Y.S.2d 420), the Supreme Court properly denied his motion for summary judgment dismissing the complaint insofar as asserted against him.