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Ricker v. B.O.E. of Hyde Park

Appellate Division of the Supreme Court of New York, Second Department
Apr 14, 2009
61 A.D.3d 735 (N.Y. App. Div. 2009)

Opinion

No. 2008-05207.

April 14, 2009.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated May 12, 2008, which denied their motion for summary judgment dismissing the complaint.

Tarshis, Catania, Liberth, Mahon Milligram, PLLC, Uniondale, N.Y. (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger [Christine Gasser] of counsel), for appellants.

Van De Water Van De Water, LLP, Poughkeepsie, N.Y. (Janis M. Gomez Anderson of counsel), for respondent.

Before: Skelos, J.P., Dillon, Covello and Leventhal, JJ.


Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint. "[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 NY2d 976, 977). Rather, a court must look at 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 NY2d at 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]). Here, the defendants failed to make a prima facie showing that the alleged sidewalk defect was trivial and therefore, not actionable ( see Trumboli v Fifth Ave. Paving, 59 AD3d 706; Boxer v Metropolitan Transp. Auth., 52 AD3d 447; Portanova v Kantlis, 39 AD3d 731, 732; Mishaan v Tobias, 32 AD3d 1000; Maxson v Brentwood Union Free School Dist, 31 AD3d 506; Adsmond v City of Poughkeepsie, 283 AD2d 598).


Summaries of

Ricker v. B.O.E. of Hyde Park

Appellate Division of the Supreme Court of New York, Second Department
Apr 14, 2009
61 A.D.3d 735 (N.Y. App. Div. 2009)
Case details for

Ricker v. B.O.E. of Hyde Park

Case Details

Full title:JAMES B. RICKER, Respondent, v. BOARD OF EDUCATION OF TOWN OF HYDE PARK et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 14, 2009

Citations

61 A.D.3d 735 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 2982
876 N.Y.S.2d 658

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