Opinion
781 CA 20-00017
12-23-2020
Anna L. AMOS, Plaintiff-Respondent, v. SCHOOL 16 ASSOCIATES, L.P., Defendant-Appellant.
WALSH, ROBERTS & GRACE LLP, BUFFALO (KEITH N. BOND OF COUNSEL), FOR DEFENDANT-APPELLANT. CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
WALSH, ROBERTS & GRACE LLP, BUFFALO (KEITH N. BOND OF COUNSEL), FOR DEFENDANT-APPELLANT.
CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover damages for injuries she allegedly sustained when she tripped and fell on a crack in the sidewalk adjacent to property owned by defendant. As relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that the defect was trivial as a matter of law. Supreme Court denied the motion, and we affirm.
"[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, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] [internal quotation marks omitted]; see Tesak v. Marine Midland Bank , 254 A.D.2d 717, 717-718, 678 N.Y.S.2d 226 [4th Dept. 1998] ). Where "a ‘defect is so slight that no careful or prudent [person] would reasonably anticipate any danger from its existence,’ and yet an accident occurs that is traceable to the defect, there is no liability" ( Hutchinson v. Sheridan Hill House Corp ., 26 N.Y.3d 66, 81, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015], quoting Beltz v. City of Yonkers , 148 N.Y. 67, 70, 42 N.E. 401 [1895] ). To establish that a defect is trivial, a defendant must show "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" ( id. at 79, 19 N.Y.S.3d 802, 41 N.E.3d 766 ). Although a court determining whether a defect is trivial as a matter of law should consider the size of the defect, "a mechanistic disposition of a case based exclusively on the dimension of the sidewalk defect is unacceptable" ( Trincere , 90 N.Y.2d at 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). Rather, the court must consider factors such as the dimensions of the alleged defect, its appearance and elevation, and "the time, place, and circumstance of the injury" ( Hutchinson , 26 N.Y.3d at 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 [internal quotation marks omitted]; see Stein v. Sarkisian Bros., Inc. , 144 A.D.3d 1571, 1572, 40 N.Y.S.3d 818 [4th Dept. 2016] ). The existence or nonexistence of a defect " ‘is generally a question of fact for the jury’ " ( Trincere , 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ).
Based on the record before us, we conclude that defendant failed to meet its burden of establishing as a matter of law that the alleged defect "was too trivial to constitute a dangerous or defective condition" ( Schaaf v. Pork Chop, Inc. , 24 A.D.3d 1277, 1278, 807 N.Y.S.2d 773 [4th Dept. 2005] ; see Stewart v. 7-Eleven, Inc. , 302 A.D.2d 881, 881, 753 N.Y.S.2d 786 [4th Dept. 2003] ). The photographs and deposition testimony submitted by defendant in support of its motion established that plaintiff's right toe became caught in a sidewalk crack that had a height differential ranging from half an inch to one inch and which was located in the vicinity of several other cracks. Under these circumstances, we cannot say that defendant established that the defect was trivial as a matter of law (see e.g. Lupa v. City of Oswego , 117 A.D.3d 1418, 1419, 985 N.Y.S.2d 361 [4th Dept. 2014] ; Cuebas v. Buffalo Motor Lodge/Best Value Inn , 55 A.D.3d 1361, 1362, 865 N.Y.S.2d 184 [4th Dept. 2008] ; Tesak , 254 A.D.2d at 717-718, 678 N.Y.S.2d 226 ).