Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants.
Bartlett, McDonough & Monaghan, LLP, Mineola, N.Y. (Patricia D'Alvia and Robert G. Vizza of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, JEFFREY A. COHEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Adams, J.), entered August 27, 2012, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered September 21, 2012, which, upon the order, in effect, is in favor of the defendant and against them, dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a]).
At approximately noon on October 18, 2010, the injured plaintiff allegedly tripped and fell over a partially raised walkway flag located on the defendant's premises. The injured plaintiff, and her husband suing derivatively, commenced this action to recover damages, inter alia, for personal injuries. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion, concluding that the alleged defect was trivial and, thus, not actionable.
"[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 N.Y.2d 976, 977, quoting Guerrieri v Summa, 193 A.D.2d 647, 647 [internal quotation marks omitted]; see Copley v Town of Riverhead, 70 A.D.3d 623). However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Aguayo v New York City Hous. Auth., 71 A.D.3d 926; Zalkin v City of New York, 36 A.D.3d 801; Hargrove v Baltic Estates, 278 A.D.2d 278). "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'" (Schenpanksi v Promise Deli, Inc., 88 A.D.3d 982, 983, quoting Trincere v County of Suffolk, 90 N.Y.2d at 978 [internal quotation marks omitted]). "[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 N.Y.2d at 977). "Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable" (Schenpanski v Promise Deli, Inc., 88 A.D.3d at 984; see Aguayo v New York City Hous. Auth., 71 A.D.3d 926; Maiello v Eastchester Union Free School Dist., 8 A.D.3d 536).
Here, upon reviewing the photographs submitted by the defendant in support of its motion, which were produced during discovery by the plaintiffs, who represented that they depicted the area where the accident occurred as it existed on the date of the accident, and considering all other relevant factors, such as the clear weather at the time of the accident and the lack of any other foot traffic or other obstructions on the walkway at the time of the accident, we conclude that the defendant established, prima facie, that the alleged defect, which measured no more than one-half inch in height, was not actionable, as it was trivial as a matter of law (see Schenpanski v Promise Deli, Inc., 88 A.D.3d at 984; Aguayo v New York City Hous. Auth., 71 A.D.3d at 927; Copley v Town of Riverhead, 70 A.D.3d at 624; Fisher v JRMR Realty Corp., 63 A.D.3d 677, 678; Morris v Greenburgh Cent. School Dist. No. 7, 5 A.D.3d 567, 568). In opposition, the plaintiffs failed to raise a triable issue of fact (see Shiles v Carillon Nursing & Rehabilitation Ctr., LLC., 54 A.D.3d 746).
The plaintiffs' contention that the defendant should be sanctioned for spoliation of evidence is improperly raised for the first time on appeal and therefore is not properly before this Court (see Spitzer v Landau, 104 A.D.3d 936, 937; Matter of Klass v City of New York, 103 A.D.3d 800, 802; 1812 Quentin Rd., LLC v 1812 Quentin Rd. Condominium Ltd., 94 A.D.3d 1070, 1072).
In light of our determination, we need not reach the plaintiffs' remaining contention.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment ...