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Raffaela Nigro, Plaintiff-Appellant v. Cervinara

New York Supreme and/or Appellate Courts Appellate Division, First Department


May 2, 2013

RAFFAELA NIGRO, PLAINTIFF-APPELLANT,
v.
CERVINARA, LLC, ET AL., DEFENDANTS, DARDANIA PROPERTIES, LLC, DEFENDANT-RESPONDENT.

Nigro v Cervinara, LLC

Decided on May 2, 2013

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Andrias, Saxe, Manzanet-Daniels, Gische, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered June 28, 2012, which granted the motion of defendant Dardania Properties, LLC (Dardania) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff alleges that she was injured when she tripped and fell over a raised sidewalk flag outside a building owned by Dardania. "[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" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal quotation marks omitted]).

Here, the evidence, including photographs of the subject sidewalk flag and plaintiff's testimony that she tripped over a two-inch height differential while walking and looking straight ahead, presents triable issues as to whether the defect was trivial (see Narvaez v 2914 Third Ave. Bronx, LLC, 88 AD3d 500, 501 [1st Dept 2011]; Tese-Milner v 30 E. 85th St. Co., 60 AD3d 458 [1st Dept 2009]). Moreover, Dardania's challenges to plaintiff's interpretation of the measurements of the raised sidewalk flag depicted in the photographs are unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 2, 2013

CLERK

20130502

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