Opinion
2017–02372 Index No. 707651/14
02-28-2018
Milagros CORTES, respondent, v. TARAVELLA FAMILY TRUST, appellant.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum ], of counsel), for appellant. Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Martin Block, Melissa C. Ingrassia, and David Woycik of counsel), for respondent.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum ], of counsel), for appellant.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Martin Block, Melissa C. Ingrassia, and David Woycik of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal from an order of the Supreme Court, Queens County (Leonard Livote, J.), dated December 21, 2016. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.The plaintiff allegedly was injured when she tripped and fell due to a crack in the concrete floor of the defendant's backyard in Queens. Thereafter, the plaintiff commenced this action against the defendant to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, contending that the crack at issue was trivial and therefore not actionable. The Supreme Court denied the motion, and the defendant appeals.
Generally, 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, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). 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 id. at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). 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 circumstance of the injury" ( id. at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks 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 ).
"A 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, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; see Chojnacki v. Old Westbury Gardens, Inc. , 152 A.D.3d 645, 646, 58 N.Y.S.3d 583 ). Contrary to the defendant's contention, it failed to establish, prima facie, that the alleged defective condition was trivial as a matter of law and therefore not actionable (see Craig v. Meadowbrook Pointe Homeowner's Assn., Inc. , 158 A.D.3d 601, 2018 N.Y. Slip Op. 00819, 2018 WL 736214 [2d Dept. 2018] ; Chojnacki v. Old Westbury Gardens, Inc. , 152 A.D.3d at 646, 58 N.Y.S.3d 583 ; Parente v. City of New York , 144 A.D.3d 1117, 1118, 42 N.Y.S.3d 322 ). Accordingly, the Supreme Court properly denied its motion for summary judgment dismissing the complaint.
BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.