Opinion
2014-03-12
Margaret NUSSBAUM, appellant, v. BROKEN DOWN VALISE PUB, et al., respondents.
Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), for appellant. Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Nicholas P. Hurzeler and Gregory S. Katz of counsel), for respondents.
Michael A. Cervini, Elmhurst, N.Y. (Robin Mary Heaney of counsel), for appellant.Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Nicholas P. Hurzeler and Gregory S. Katz of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered April 6, 2012, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
According to the plaintiff, on June 15, 2009, as she was walking to the restroom inside the defendant Broken Down Valise Pub, which was owned and operated by the defendant Highlander Group, LLC, her right foot “ca[ught] on something” and she fell, sustaining injuries. After the accident, the plaintiff observed a metal grate on the floor, which she testified was the cause of her fall. The plaintiff commenced this action to recover damages for personal injuries. Following service of an answer, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the defendants' motion.
“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” ( Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 927, 897 N.Y.S.2d 239 [internal quotation marks omitted]; see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;Copley v. Town of Riverhead, 70 A.D.3d 623, 623, 895 N.Y.S.2d 452;Guerrieri v. Summa, 193 A.D.2d 647, 647, 598 N.Y.S.2d 4). “However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” ( Aguayo v. New York City Hous. Auth., 71 A.D.3d at 927, 897 N.Y.S.2d 239;see Joseph v. Villages at Huntington Home Owners Assn., Inc., 39 A.D.3d 481, 482, 835 N.Y.S.2d 231;Outlaw v. Citibank, N.A., 35 A.D.3d 564, 564, 826 N.Y.S.2d 642). “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” ( Aguayo v. New York City Hous. Auth., 71 A.D.3d at 927, 897 N.Y.S.2d 239 [internal quotation marks omitted]; see Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489;Caldwell v. Village of Is. Park, 304 N.Y. 268, 274, 107 N.E.2d 441).
The photographs of the metal floor grate, deposition testimony, and other evidence submitted by the defendants established, prima facie, that the alleged defect was not actionable, as it was trivial and did not possess the characteristics of a trap or nuisance ( see Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489;Schiller v. St. Francis Hosp., Roslyn, N.Y., 108 A.D.3d 758, 759–760, 970 N.Y.S.2d 241;Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 984, 931 N.Y.S.2d 650;Aguayo v. New York City Hous. Auth., 71 A.D.3d at 927, 897 N.Y.S.2d 239;Copley v. Town of Riverhead, 70 A.D.3d at 624, 895 N.Y.S.2d 452). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. RIVERA, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.