Opinion
2016–12479 Index No. 13659/13
04-11-2018
Carol A. HOPKINS, appellant, v. ST. AGNES ROMAN CATHOLIC CHURCH AT ROCKVILLE CENTRE, in COUNTY OF NASSAU, State of New York, respondent.
Hopkins & Kopilow, Garden City, N.Y. (Michael T. Hopkins of counsel), for appellant. Mulholland, Minion, Davey, McNiff & Beyrer, Williston Park, N.Y. (Lynn A. Waylonis of counsel), for respondent.
Hopkins & Kopilow, Garden City, N.Y. (Michael T. Hopkins of counsel), for appellant.
Mulholland, Minion, Davey, McNiff & Beyrer, Williston Park, N.Y. (Lynn A. Waylonis of counsel), for respondent.
SHERI S. ROMAN, J.P., SANDRA L. SGROI, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered October 11, 2016. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she fell while descending the exterior staircase of a church owned by the defendant. The plaintiff alleged that the accident resulted from a difference in riser height between steps on the staircase. The defendant moved for summary judgment dismissing the complaint on the ground that the alleged dangerous condition was trivial and, therefore, not actionable as a matter of law. The Supreme Court granted the defendant's motion, and the plaintiff appeals.
"Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury" ( Pitt v. New York City Tr. Auth., 146 A.D.3d 826, 827, 44 N.Y.S.3d 525, citing Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). "A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses" ( Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 79, 41 N.E.3d 766 ). "In determining whether a defect is trivial as a matter of law, 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’ " (Pitt v. New York City Tr. Auth., 146 A.D.3d at 828, 44 N.Y.S.3d 525, quoting 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] ).
Here, the defendant met its prima facie burden for summary judgment by establishing that the alleged defect was trivial as a matter of law (see Sulca v. Barry Hers Realty, Inc., 29 A.D.3d 779, 779, 815 N.Y.S.2d 204 ; cf. Schwartz v. Reisman, 135 A.D.3d 739, 739–740, 22 N.Y.S.3d 879 ; Swerdlow v. WSK Props. Corp., 5 A.D.3d 587, 588, 772 N.Y.S.2d 864 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.