Marder, Eskesen & Nass, New York, N.Y. (Kenneth Marder of counsel), for appellant.
Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol of counsel), for respondents.
MARK C. DILLON, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), dated December 9, 2011, as granted that branch of the motion of the defendants Jamaica Seven, LLC, and Jamaica Seven Properties, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Jamaica Seven, LLC, and Jamaica Seven Properties, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them is denied.
On February 4, 2009, the plaintiff allegedly sustained injuries when she tripped and fell due to a difference in elevation between a section of the brick entranceway to the building in which she lived and the adjoining concrete sidewalk. She commenced this action to recover damages for personal injuries against the owners of the building, the defendants Jamaica Seven, LLC, and Jamaica Seven Properties, LLC (hereinafter together the Jamaica Seven defendants), and the City of New York. The Jamaica Seven defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them on the basis that the subject defect was trivial and, therefore, nonactionable. The Supreme Court granted that branch of the Jamaica Seven defendants' motion.
"Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law" (Milewski v Washington Mut., Inc., 88 A.D.3d 853, 855; see Trincere v County of Suffolk, 90 N.Y.2d 976, 977). "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 circumstances of the injury'" (Turuseta v Wyassup-Laurel Glen Corp., 91 A.D.3d 632, 633, quoting Trincere v County of Suffolk, 90 N.Y.2d at 978; see Brenner v Herricks Union Free Sch. Dist., 106 A.D.3d 766, 767). There is no "minimal dimension test" or per se rule that a defect, in order to be actionable, must be a certain height or depth (Trincere v County of Suffolk, 90 N.Y.2d at 977; see Milewski v Washington Mut. Inc., 88 A.D.3d at 856).
Here, in support of their motion, the Jamaica Seven defendants submitted evidence, including photographs, which showed that the bricks within the section of the entranceway where the plaintiff tripped were depressed below the adjacent public sidewalk, causing a height differential of at least 3/4 of an inch. This evidence, including the plaintiff's deposition testimony, was insufficient to demonstrate as a matter of law that the alleged defect was trivial and, therefore, not actionable (see Brenner v Herricks Union Free Sch. Dist., 106 A.D.3d at 767; Devlin v Ikram, 103 A.D.3d 682; Guidone v Town of Hempstead, 94 A.D.3d 1054, 1055; Rogers v 575 Broadway Assocs., L.P., 92 A.D.3d 857, 858; Perez v 655 Montauk, LLC, 81 A.D.3d 619, 620).
Since the Jamaica Seven defendants did not meet their prima facie burden as the movants, we need not consider the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851).
Accordingly, the Supreme Court should have denied the branch of the Jamaica Seven defendants' motion which was for summary judgment dismissing the ...