Opinion
2016–02829 Index No. 13935/12
07-18-2018
Margaret FRENCH, respondent, v. LONG ISLAND CHILDREN'S MUSEUM, et al., appellants, et al., defendants.
Jared A. Kasschau, County Attorney, Mineola, N.Y. (Nicholas Vevante of counsel), for appellants. Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, N.Y. (Joseph Bavaro and Beth S. Gereg of counsel), for respondent.
Jared A. Kasschau, County Attorney, Mineola, N.Y. (Nicholas Vevante of counsel), for appellants.
Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, N.Y. (Joseph Bavaro and Beth S. Gereg of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., SHERI S. ROMAN, SANDRA L. SGROI, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Long Island Children's Museum, Nassau County, Nassau County Department of Public Works, and Nassau County Department of Parks, Recreation and Museums appeal from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered December 22, 2015. The order denied the motion of those defendants for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when she tripped and fell on a raised portion of sidewalk located on property that had been leased by the defendant Nassau County to the defendant Long Island Children's Museum (hereinafter the Museum). The plaintiff thereafter commenced this action to recover damages for personal injuries. The Museum, the County, and the defendants Nassau County Department of Public Works and Nassau County Department of Parks, Recreation and Museums (hereinafter collectively the defendants), moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the motion, and the defendants appeal.
Contrary to the defendants' contention, they did not demonstrate their prima facie entitlement to judgment as a matter of law on their argument that the County did not receive prior written notice of the alleged defect as required by Nassau County Administrative Code § 12–4.0(e). "When a governmental agency is acting in a proprietary capacity as a property owner or landowner, it owes the same duty to maintain its property as a private landowner" ( Maccarello v. County of Suffolk, 100 A.D.3d 972, 974, 954 N.Y.S.2d 609 ; see Miller v. State of New York, 62 N.Y.2d 506, 511, 478 N.Y.S.2d 829, 467 N.E.2d 493 ; Dick v. Town of Wappinger, 63 A.D.3d 661, 662, 880 N.Y.S.2d 180 ). Here, prior written notice was not required because the County, which had leased the premises to the Museum, was acting in a proprietary capacity (see Maccarello v. County of Suffolk, 100 A.D.3d at 973, 954 N.Y.S.2d 609 ; Dick v. Town of Wappinger, 63 A.D.3d at 662, 880 N.Y.S.2d 180 ).
The defendants failed to demonstrate, prima facie, their entitlement to judgment as a matter of law on the ground that their alleged negligence was not a proximate cause of the plaintiff's alleged injuries. Contrary to the defendants' contention, the movement of other individuals on the subject sidewalk, which led the plaintiff to walk on the allegedly defective portion of the sidewalk, did not constitute an unforeseeable act breaking the chain of causation between the defendants' alleged negligent maintenance of the sidewalk and the plaintiff's injuries (see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315–316, 434 N.Y.S.2d 166, 414 N.E.2d 666 ; cf. Sinistaj v. Maier, 82 A.D.3d 868, 869, 918 N.Y.S.2d 196 ).
The defendants failed to demonstrate, prima facie, that the alleged defective condition on the sidewalk was trivial as a matter of law, and thus, nonactionable. There is no "minimal dimension test or per se rule" that the condition must be of a certain height to be actionable ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 ). "[P]hysically small defects [are] actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot" ( Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 79, 19 N.Y.S.3d 802, 41 N.E.3d 766 ). "In determining whether a defect is trivial as a matter of law, a 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 circumstances of the injury" ( Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 619–620, 916 N.Y.S.2d 137 ; see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Pitt v. New York City Tr. Auth., 146 A.D.3d 826, 828, 44 N.Y.S.3d 525 ).
Here, considering, among other things, the dimensions of the defect, the apparent irregularity of the surface, and the evidence that the raised portion of the sidewalk was covered with caulking that made the defect difficult to see, the defendants failed to demonstrate that the defect was trivial as a matter of law (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 19 N.Y.S.3d 802, 41 N.E.3d 766 ; Sahni v. Kitridge Realty Co., Inc., 114 A.D.3d 837, 838, 980 N.Y.S.2d 787 ; Shmidt v. JPMorgan Chase & Co., 112 A.D.3d 811, 811–812, 977 N.Y.S.2d 349 ; Mishaan v. Tobias, 32 A.D.3d 1000, 1001–1002, 821 N.Y.S.2d 640 ).
The defendants' remaining contention is without merit.
Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.
SCHEINKMAN, P.J., ROMAN, SGROI and MALTESE, JJ., concur.