Opinion
5980 400055/07
11-10-2011
Nelida A. Valentin, Plaintiff-Appellant, v. Columbia University, Defendant-Respondent.
Shapiro Law Offices, PLLC, Bronx (Ernest S. Buonocore of counsel), for appellant. Rivkin Radler LLP, Uniondale (Harris J. Zakarin of counsel), for respondent.
, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Román, JJ.
Shapiro Law Offices, PLLC, Bronx (Ernest S. Buonocore of counsel), for appellant.
Rivkin Radler LLP, Uniondale (Harris J. Zakarin of counsel), for respondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered August 20, 2010, which, in this action for personal injuries, granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously modified, on the law, defendant's motion denied, and otherwise affirmed, without costs.
Dismissal of the complaint was not warranted in this action where plaintiff alleges that she was injured when, while walking on defendant's property, she stepped on a loose hexagonal paver, causing her foot to get caught in the space between pavers and her to fall to the ground. The statement from plaintiff's witness that "for many years prior to the date of the accident . . . the hexagon tiles in the specific area of [plaintiff's] fall were loose and uneven and presented a hazardous condition" created a triable issue of fact as to whether defendant had constructive notice of the loose condition of the subject paver (see Colbourn v ISS Intl. Serv. Sys., 304 AD2d 369, 370 [2003]; compare Lance v Den-Lyn Realty Corp., 84 AD3d 470 [2011]). Contrary to defendant's contention, it failed to establish that the defect was trivial as a matter of law, since there is a lack of evidence demonstrating the size of the gap between the pavers (see Rivas v Crotona Estates Hous. Dev. Fund Co., Inc., 74 AD3d 541 [2010]). Furthermore, because the loose condition of a paver is difficult to detect, such a condition, combined with a gap between pavers, creates a triable issue as to whether the condition of the walkway, regardless of any triviality, had the characteristics of a trap or snare (see Glickman v City of New York, 297 AD2d 220 [2002]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
CLERK