Gruenberg Kelly Della, Ronkonkoma, NY (Zachary M. Beriloff of
counsel), for appellants.
Smith & Shapiro, P.C., Hicksville, NY (Anne Marie Garcia
of counsel), for respondent.
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI HECTOR D.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from an order of the Supreme Court, Nassau
County (Sher, J.), entered October 29, 2015, which granted
the defendant's motion for summary judgment dismissing
that the order is affirmed, with costs.
plaintiff Stacey Fasone (hereinafter the injured plaintiff)
allegedly tripped and fell over a misleveled section of a
concrete walkway located just outside the rear entrance of an
office building owned by the defendant. The injured
plaintiff, and her husband suing derivatively, commenced this
action against the defendant, alleging negligence and seeking
to recover damages for personal injuries. The defendant moved
for summary judgment dismissing the complaint, contending
that the alleged defect at issue was trivial and not
actionable. The Supreme Court granted the motion.
the issue of whether a dangerous or defective condition
exists depends on the facts of each case, and is a question
of fact for the jury (see Trincere v County of
Suffolk, 90 N.Y.2d 976, 977; Platkin v County of
Nassau, 121 A.D.3d 879, 879-880; Martyniak v
Charleston Enters., LLC, 118 A.D.3d 679, 680). However,
property owners may not be held liable for trivial defects,
not constituting a trap or nuisance, over which a pedestrian
might merely stumble, stub his or her toes, or trip (see
Trincere v County of Suffolk, 90 N.Y.2d at 977;
Louima v Jims Realty, LLC, 125 A.D.3d 943, 944;
Platkin v County of Nassau, 121 A.D.3d at 879).
There is no "minimal dimension test or per se rule"
that the condition must be of a certain height or depth to be
actionable (Trincere v County of Suffolk, 90 N.Y.2d
at 977 [internal quotation marks omitted]; see Green v
New York City Hous. Auth., 137 A.D.3d 748; Martyniak
v Charleston Enters., LLC, 118 A.D.3d at 679). In
determining whether a defect is trivial as a matter of law,
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" (Trincere v County
of Suffolk, 90 N.Y.2d at 978, quoting Caldwell v
Village of Is. Park, 304 NY 268, 274; see Hutchinson
v Sheridan Hill House Corp., 26 N.Y.3d 66; Grosskopf
v 8320 Parkway Towers Corp., 88 A.D.3d 765).
"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 982, 984; see Green v New York
City Hous. Auth., 137 A.D.3d at 749; Aguayo v New
York City Hous. Auth., 71 A.D.3d 926, 927).
defendant seeking dismissal of a complaint on the basis that
the alleged defect is trivial must make a prima facie showing
that the defect is, under the circumstances, physically
insignificant and that the characteristics of the defect or
the surrounding circumstances do not increase the risks it
poses. Only then does the burden shift to the plaintiff to
establish an issue of fact" (Hutchinson v Sheridan
Hill House Corp., 26 N.Y.3d at 79). Here, the defendant
established, prima facie, that the alleged defect that caused
the injured plaintiff to fall was trivial and therefore not
actionable. In support of its motion, the defendant relied
upon, inter alia, the injured plaintiff's deposition
transcript, as well as photos identified and marked by the
injured plaintiff showing in detail the alleged defect as it
existed at the time of the subject accident. Considering the
photographs, which showed the height and extent of the
alleged defect, along with the injured plaintiff's
description of the time, place, and circumstance of the
injury, the defendant established, prima facie, that the
alleged defect was trivial as a matter of law and, therefore,
not actionable (see id. at 83; Baldasano v Long
Is. Univ., 143 A.D.3d 933; Jackson v Michel,
142 A.D.3d 535). In opposition, the plaintiffs failed to
raise a triable issue of fact.
the Supreme Court properly granted the defendant's motion