Opinion
265 CA 21-00876
03-18-2022
ANNE M. MORRIS AND ROBERT MORRIS, PLAINTIFFS-RESPONDENTS, v. BUFFALO GENERAL HEALTH SYSTEM, DEFENDANT-APPELLANT.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ROBERT D. BARONE OF COUNSEL), FOR DEFENDANT-APPELLANT. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ROBERT D. BARONE OF COUNSEL), FOR DEFENDANT-APPELLANT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered June 7, 2021. The order denied the motion of defendant for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs
Memorandum: Plaintiffs commenced this action seeking to recover damages for injuries allegedly sustained by Anne M. Morris (plaintiff) when she tripped and fell while walking on a sidewalk near an entrance to defendant's healthcare facility. As relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that the alleged defect was trivial as a matter of law. Supreme Court denied the motion, defendant appeals, 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 [1997] [internal quotation marks omitted]). Some defects, however, may be considered trivial as a matter of law (see Hutchinson v Sheridan Hill House Corp., 26 N.Y.3d 66, 77 [2015]). "[T]here is no 'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" (Trincere, 90 N.Y.2d at 977; see Hutchinson, 26 N.Y.3d at 77), and "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). In determining whether a defect is trivial, courts must consider "all the specific facts and circumstances of the case" (Hutchinson, 26 N.Y.3d at 77), including "the width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury" (Trincere, 90 N.Y.2d at 978). On a motion for summary judgment dismissing the complaint, the defendant has the initial burden of establishing "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" (Hutchinson, 26 N.Y.3d at 79).
Here, in support of the motion, defendant submitted photographs of the alleged defect, which depict a height differential between two concrete slabs on the sidewalk, but we cannot say from inspection of the photographs that the defect was trivial (see Wiedenbeck v Lawrence, 170 A.D.3d 1669, 1670 [4th Dept 2019]). Defendant also submitted deposition testimony that plaintiff tripped over a one-inch height differential between the two slabs, which under the circumstances failed to establish as a matter of law that the defect was trivial (see Amos v School 16 Assoc., L.P., 189 A.D.3d 2100, 2101-2102 [4th Dept 2020]; Greco v City of Buffalo, 128 A.D.3d 1461, 1463 [4th Dept 2015]). We therefore conclude that defendant failed to meet its initial burden of establishing that the defect in the sidewalk was trivial and hence nonactionable (see Hutchinson, 26 N.Y.3d at 82-83; Amos, 189 A.D.3d at 2101; Aja v Richter, 175 A.D.3d 952, 954 [4th Dept 2019]). Inasmuch as defendant failed to meet its initial burden, we need not consider the sufficiency of plaintiffs' opposing papers (see Hutchinson, 26 N.Y.3d at 83; Greco, 128 A.D.3d at 1463; Lupa v City of Oswego, 117 A.D.3d 1418, 1419 [4th Dept 2014]).