Opinion
2014-03505, Index No. 150355/12.
04-01-2015
Monica GOTAY, appellant, v. NEW YORK CITY HOUSING AUTHORITY, respondent.
Galvano & Xanthakis, P.C., New York, N.Y. (Elina Monroe of counsel), for appellant. Ledy–Gurren Bass D'Avanzo & Siff, LLP, New York, N.Y. (Deborah A. Bass of counsel), for respondent.
Galvano & Xanthakis, P.C., New York, N.Y. (Elina Monroe of counsel), for appellant.Ledy–Gurren Bass D'Avanzo & Siff, LLP, New York, N.Y. (Deborah A. Bass of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Troia, J.), entered March 11, 2014, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff allegedly tripped and fell over a defect in a sidewalk abutting the defendant's premises. After the plaintiff commenced this action to recover damages for personal injuries, the defendant moved for summary judgment dismissing the complaint, contending that the plaintiff could not identify the exact cause of her fall, and that, in any event, any alleged defect in the sidewalk was trivial and, hence, not actionable. The Supreme Court granted the motion, and the plaintiff appeals.
In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall (see Buglione v. Spagnoletti, 123 A.D.3d 867, 999 N.Y.S.2d 453 ; Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 995 N.Y.S.2d 747 ; Altinel v. John's Farms, 113 A.D.3d 709, 979 N.Y.S.2d 360 ). Indeed, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation (see Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d at 826, 995 N.Y.S.2d 747 ; Kudrina v. 82–04 Lefferts Tenants Corp., 110 A.D.3d 963, 964, 973 N.Y.S.2d 364 ; Dennis v. Lakhani, 102 A.D.3d 651, 652, 958 N.Y.S.2d 170 ; Califano v. Maple Lanes, 91 A.D.3d 896, 897, 938 N.Y.S.2d 140 ; Alabre v. Kings Flatland Car Care Ctr., Inc., 84 A.D.3d 1286, 1287, 924 N.Y.S.2d 174 ). Here, the evidence submitted in support of the defendant's own motion revealed a triable issue of fact as to whether the plaintiff was unable to identify the cause of her fall. Specifically, the defendant submitted a transcript of the plaintiff's deposition, at which she testified that the right heel of her shoe became stuck in a crack on the sidewalk adjacent to 14 Roxbury Street, premises that were owned by the defendant on the date of the accident. In addition, the defendant submitted the transcript of a hearing held pursuant to Public Housing Law § 157(2) and General Municipal Law § 50–h, at which the plaintiff identified, in a photograph, the specific crack on which she tripped on the evening of the accident, and at which she confirmed that the crack was on the sidewalk adjacent to the defendant's premises. Therefore, contrary to the Supreme Court's determination, the defendant did not establish its prima facie entitlement to judgment as a matter of law by showing that the plaintiff was unable to identify either the location or the cause of the accident.
The Supreme Court further erred in concluding that the defect alleged by the plaintiff was trivial and, hence, not actionable. “[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, quoting Guerrieri v. Summa, 193 A.D.2d 647, 647, 598 N.Y.S.2d 4 ; see Platkin v. County of Nassau, 121 A.D.3d 879, 994 N.Y.S.2d 636 ; Turuseta v. Wyassup–Laurel Glen Corp., 91 A.D.3d 632, 633, 937 N.Y.S.2d 240 ; Copley v. Town of Riverhead, 70 A.D.3d 623, 895 N.Y.S.2d 452 ). However, a property owner may not be held liable for trivial defects, not constituting a trap, snare, or nuisance, over which a person might merely stumble, stub his or her toes, or trip (see Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Platkin v. County of Nassau, 121 A.D.3d at 880, 994 N.Y.S.2d 636 ; Moses v. T–Mobile, 106 A.D.3d 967, 966 N.Y.S.2d 452 ; Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 983, 931 N.Y.S.2d 650 ). 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” (Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). There is no “minimal dimension test” or “per se rule” that a condition must be of a certain height or depth in order to be actionable (id. at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; see Platkin v. County of Nassau, 121 A.D.3d at 879, 994 N.Y.S.2d 636 ; Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 931 N.Y.S.2d 336 ; Ricker v. Board of Educ. of Town of Hyde Park, 61 A.D.3d 735, 876 N.Y.S.2d 658 ). Photographs that fairly and accurately represent the accident site may be used to establish whether a defect is trivial and, therefore, not actionable (see Platkin v. County of Nassau, 121 A.D.3d at 880, 994 N.Y.S.2d 636 ; Das v. Sun Wah Rest., 99 A.D.3d 752, 952 N.Y.S.2d 232 ).
Here, the evidence submitted by the defendant in support of its motion, including the transcripts of the deposition testimony of the parties, the transcript of the hearing conducted pursuant to Public Housing Law § 157(2) and General Municipal Law § 50–h, and photographs of the sidewalk, was insufficient to demonstrate that the alleged defect was trivial as a matter of law and, therefore, not actionable (see Martyniak v. Charleston Enters., LLC, 118 A.D.3d 679, 987 N.Y.S.2d 413 ; Ortiz v. 82–90 Broadway Realty Corp., 117 A.D.3d 1016, 986 N.Y.S.2d 133 ; Sahni v. Kitridge Realty Co., Inc., 114 A.D.3d 837, 980 N.Y.S.2d 787 ; Shmidt v. JPMorgan Chase & Co., 112 A.D.3d 811, 977 N.Y.S.2d 349 ; Nagin v. K.E.M. Enters., Inc., 111 A.D.3d 901, 975 N.Y.S.2d 753 ; Brenner v. Herricks Union Free Sch. Dist., 106 A.D.3d 766, 964 N.Y.S.2d 605 ). Since the defendant failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.