Opinion
03-03-2016
Diane CHIRUMBOLO, Appellant, v. 78 EXCHANGE STREET, LLC, Respondent.
Robert C. Kilmer, Binghamton, for appellant. Kenney Shelton Liptak Nowak LLP, Buffalo (Robert A. Crawford Jr. of counsel), for respondent.
Robert C. Kilmer, Binghamton, for appellant.
Kenney Shelton Liptak Nowak LLP, Buffalo (Robert A. Crawford Jr. of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE and LYNCH, JJ.
PETERS, P.J.
Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered February 9, 2015 in Broome County, which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff commenced this action to recover for injuries sustained when she tripped on a lip created by a height differential in adjoining concrete slabs while walking on a sidewalk in front of defendant's property in the City of Binghamton, Broome County. Following joinder of issue, defendant moved for summary judgment dismissing the complaint on the ground that the alleged defect was trivial as a matter of law. Supreme Court granted the motion, prompting this appeal.
Viewing the evidence in the light most favorable to plaintiff (see Gronski v. County of Monroe, 18 N.Y.3d 374, 381, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [2011] ), we find that summary judgment was properly granted to defendant. A property owner " ‘may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection’ " (Hardsog v. Price Chopper Operating Co., Inc., 99 A.D.3d 1130, 1131, 952 N.Y.S.2d 802 [2012], quoting Liebl v. Metropolitan Jockey Club, 10 A.D.2d 1006, 1006, 204 N.Y.S.2d 670 [1960] ; see Gillis v. Herzog Supply Co., Inc., 121 A.D.3d 1334, 1335, 995 N.Y.S.2d 314 [2014] ). "Whether a defect is so trivial to preclude liability depends on the particular facts of each case and requires consideration of such relevant factors as the dimensions of the alleged defect and the circumstances surrounding the injury, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place and circumstances of the injury" (Castle v. Six Flags, Inc., 81 A.D.3d 1137, 1137–1138, 917 N.Y.S.2d 386 [2011] [internal quotation marks and citations omitted]; see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ; Medina v. State of New York, 133 A.D.3d 943, 944, 18 N.Y.S.3d 799 [2015] ).
Here, defendant's submissions in support of its motion included plaintiff's deposition testimony and photographs of the accident site. Plaintiff testified that she was familiar with the area and had traversed the subject sidewalk approximately 100 times over the course of some 60 years, including earlier on the day of the accident as well as two weeks prior thereto. She explained that, as she was walking back to her car from an insurance office, her left foot "caught the edging" of the concrete slab adjacent to the one in which she was walking, causing her to trip. Plaintiff admitted that she was not looking down at the sidewalk while she was walking and it is undisputed that, at the time of her fall, the weather was clear, there was no snow or ice on the ground and the sidewalk was unobstructed and free of debris. Photographs of the portion of the sidewalk at issue demonstrate that it is relatively smooth and show only a slight height differential between the adjacent slabs of concrete, which were of different shades. Such evidence satisfied defendant's initial burden of making a prima facie showing that any alleged defect in the sidewalk was too trivial to be actionable (see Gillis v. Herzog Supply Co., Inc., 121 A.D.3d at 1336, 995 N.Y.S.2d 314 ; Hardsog v. Price Chopper Operating Co., Inc., 99 A.D.3d at 1131, 952 N.Y.S.2d 802 ; Castle v. Six Flags, Inc., 81 A.D.3d at 1138, 917 N.Y.S.2d 386 ; Trionfero v. Vanderhorn, 6 A.D.3d 903, 904, 774 N.Y.S.2d 612 [2004] ).
In opposition to the motion, plaintiff proffered her own affidavit as well as that of a self-employed contractor who examined the portion of the sidewalk where plaintiff fell and opined that it was "maintained in a manner below industry standards." The contractor's affidavit fails to set forth the information necessary to determine whether he possesses " ‘the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable’ " (Flanger v. 2461 Elm Realty Corp., 123 A.D.3d 1196, 1197, 998 N.Y.S.2d 502 [2014], quoting Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532 [1979] ; see Houck v. Simoes, 85 A.D.3d 967, 968, 925 N.Y.S.2d 658 [2011] ; Hofmann v. Toys "R" Us, N.Y. Ltd. Partnership, 272 A.D.2d 296, 296, 707 N.Y.S.2d 641 [2000] ). In any event, while finding that the concrete sloped downward approximately two inches over the 12 linear inches leading up to the adjacent slab on which plaintiff tripped, the contractor failed to identify any applicable code, industry standard or accepted practice that was violated (see Buchholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 9, 798 N.Y.S.2d 715, 831 N.E.2d 960 [2005] ; Hardsog v. Price Chopper Operating Co., Inc., 99 A.D.3d at 1132, 952 N.Y.S.2d 802 ; Guldy v. Pyramid Corp., 222 A.D.2d 815, 816, 634 N.Y.S.2d 788 [1995] ). His reference to the Americans With Disabilities Act is misplaced inasmuch as the Act does not set a safety standard of care (see Corbett v. Adelphia W. N.Y. Holdings, LLC, 45 A.D.3d 1293, 1295, 845 N.Y.S.2d 648 [2007] ; see generally Lugo v. St. Nicholas Assoc., 18 A.D.3d 341, 795 N.Y.S.2d 227 [2005] ). As plaintiff's submissions failed to raise a question of fact concerning the trivial nature of the defect, the complaint was properly dismissed.ORDERED that the order is affirmed, with costs.
GARRY, ROSE and LYNCH, JJ., concur.