- April 2, 2018
& Sobo, LLP, Middletown, NY (Raymond J. Iaia and Mark
Cambareri of counsel), for appellant.
Steinberg, Symer & Platt, LLP, Poughkeepsie, NY (Robert
R. Haskins of counsel), for respondents.
C. BALKIN, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX LINDA
action to recover damages for personal injuries, the
plaintiff appeals from an order of the Supreme Court,
Dutchess County (Peter M. Forman, J.), dated February 16,
2017. The order granted the defendants' motion for
summary judgment dismissing the amended complaint.
that the order is reversed, on the law, with costs, and the
defendants' motion for summary judgment dismissing the
amended complaint is denied.
plaintiff allegedly was injured when she fell inside the
defendants' supermarket in Poughkeepsie. The plaintiff
commenced this action against the defendants. The plaintiff
gave deposition testimony to the effect that she tripped and
fell over a raised portion of a rubber mat near the entrance
of the supermarket. The plaintiff's husband testified at
his deposition that the raised portion of the mat was
"two fat fingers high.'' The defendants'
store manager testified at his deposition that the bump in
the mat was about half an inch high.
defendants moved for summary judgment dismissing the amended
complaint, contending that the condition of the mat was
trivial and not actionable. The Supreme Court granted the
defendants' motion, determining that the plaintiff did
not know what had caused her to fall and that, in any event,
the condition that allegedly caused the plaintiff to fall was
trivial and not actionable. The plaintiff appeals.
determining a motion for summary judgment, a court is
generally limited to the issues or defenses that are the
subject of the motion (see Rosenblatt v St. George Health
& Racquetball Assoc., LLC, 119 A.D.3d 45, 52). Here,
the Supreme Court should not have granted the motion on the
ground that the plaintiff did not know what caused her to
fall, since the issue was not raised by the defendants in
their motion papers. In any event, the defendants failed to
establish, prima facie, that the plaintiff did not know what
caused her to fall (see Flanagan v Town of
Huntington, 155 A.D.3d 1000, 1001; Lamour v
Decimus, 118 A.D.3d 851, 852; Weed v County of
Orange, 82 A.D.3d 967, 969).
the issue of whether a dangerous or defective condition
exists on the property of another 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;
Santacruz v Taco Bell of Am., LLC, 128 A.D.3d 793).
However, a property owner 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). 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" (id. at 978
[internal quotation marks omitted]; see Hutchinson v
Sheridan Hill House Corp., 26 N.Y.3d 66, 77).
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 evidence
submitted by the defendants, including a surveillance footage
of the incident, was insufficient to demonstrate, prima
facie, that the condition of the mat was trivial as a matter
of law and therefore not actionable (see Boxer v
Metropollitan Transp. Auth., 52 A.D.3d 447, 448;
Portanova v Kantlis, 39 A.D.3d 731, 732).
the Supreme Court should have denied the defendants'
motion for summary judgment dismissing the amended complaint,
without considering the sufficiency of the plaintiff's
opposition papers ...