Opinion
2013-12-18
Yevgeniya SHMIDT, respondent, v. JPMORGAN CHASE & CO., et al., appellants.
Russo & Toner, LLP, New York, N.Y. (Marcin J. Kurzatkowski and Kevin G. Horbatiuk of counsel), for appellants. Bernstone & Grieco, LLP, New York, N.Y. (Matthew A. Schroeder of counsel), for respondent.
Russo & Toner, LLP, New York, N.Y. (Marcin J. Kurzatkowski and Kevin G. Horbatiuk of counsel), for appellants. Bernstone & Grieco, LLP, New York, N.Y. (Matthew A. Schroeder of counsel), for respondent.
RUTH C. BALKIN, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 3, 2012, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly fell due to a defect in a sidewalk abutting premises leased by the defendant JPMorgan Chase & Co., and owned by the defendant Robert Kaufman. Thereafter, the plaintiff commenced this action. The defendants moved for summary judgment dismissing the complaint, contending, inter alia, that the alleged defect at issue was trivial and, in any event, that they did not have constructive notice of the alleged condition. The Supreme Court denied the motion.
“Generally, the issue of whether a dangerous condition exists depends on the particular facts of each case, and is properly a question of fact for the jury” (Guidone v. Town of Hempstead, 94 A.D.3d 1054, 1055, 942 N.Y.S.2d 632; see Rogers v. 575 Broadway Assoc., L.P., 92 A.D.3d 857, 858, 939 N.Y.S.2d 517; Sokolovskaya v. Zemnovitsch, 89 A.D.3d 918, 919, 933 N.Y.S.2d 90; Richardson v. JAL Diversified Mgt., 73 A.D.3d 1012, 1013, 901 N.Y.S.2d 676). 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 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 619–620, 916 N.Y.S.2d 137; Fisher v. JRMR Realty Corp., 63 A.D.3d 677, 678, 880 N.Y.S.2d 187).
Here, the evidence submitted by the defendants, including the deposition testimony of the parties and photographs of the sidewalk abutting the defendants' premises, was insufficient to demonstrate, as a matter of law, that the alleged defect was trivial, and, therefore, not actionable ( see Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489; Rogers v. 575 Broadway Assoc., L.P., 92 A.D.3d 857, 939 N.Y.S.2d 517; Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 916 N.Y.S.2d 137; Mishaan v. Tobias, 32 A.D.3d 1000, 821 N.Y.S.2d 640). Moreover, the defendants failed to demonstrate, as a matter of law, that they lacked constructive notice of the alleged defect ( see Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 916 N.Y.S.2d 137; Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 896 N.Y.S.2d 400). Since the defendants failed to meet their initial burden as the movants, the Supreme Court properly denied their motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).