Opinion
CA 02-01837
February 7, 2003.
Appeal from an order of Supreme Court, Erie County (O'Donnell, J.), entered May 6, 2002, which denied defendant's motion for summary judgment dismissing the complaint.
BOUVIER, O'CONNOR, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROWN CHIARI, LLP, DEPEW (MICHAEL R. DRUMM OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, BURNS, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Plaintiff commenced this action to recover damages for injuries she sustained when she allegedly twisted her foot in a crack in defendant's sidewalk. Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint. "[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' (Guerrieri v. Summa, 193 A.D.2d 647 [citations omitted])" (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977). Upon consideration of the peculiar facts and circumstances of this case, we cannot conclude as a matter of law that the defect in the sidewalk is too trivial to constitute a dangerous or defective condition (see McKenzie v. Crossroads Arena, 291 A.D.2d 860, 861, lv dismissed 98 N.Y.2d 647; see also Zammiello v. Senpike Mall Co., 300 A.D.2d 1124 [Dec. 30, 2002]).