Opinion
2014-04-16
Maria NUNEZ, appellant, v. MORWOOD DRY CLEANERS, et al., respondents.
Paris & Chaikin, PLLC, New York, N.Y. (Ian M. Chaikin of counsel), for appellant. Kim, Patterson & Sciarrino, LLP, Bayside, N.Y. (Young Min Lee of counsel), for respondents Morwood Dry Cleaners and BMK Cleaners Corp.
Paris & Chaikin, PLLC, New York, N.Y. (Ian M. Chaikin of counsel), for appellant. Kim, Patterson & Sciarrino, LLP, Bayside, N.Y. (Young Min Lee of counsel), for respondents Morwood Dry Cleaners and BMK Cleaners Corp.
Ronald P. Berman, New York, N.Y., for respondents Chun Ok Lee and Kyung Hee Lee.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Graham, J.), entered August 3, 2012, as granted that branch of the motion of the defendants Morwood Dry Cleaners and BMK Cleaners which was for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the cross motion of the defendants Chun Ok Lee and Kyung Hee Lee which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
“[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 Cardona–Torres v. City of New York, 109 A.D.3d 862, 972 N.Y.S.2d 582;Hahn v. Wilhelm, 54 A.D.3d 896, 865 N.Y.S.2d 240). However, a property owner (and tenants) may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip ( see Schiller v. St. Francis Hosp., Roslyn, N.Y., 108 A.D.3d 758, 970 N.Y.S.2d 241;Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 855, 931 N.Y.S.2d 336;Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 897 N.Y.S.2d 239). In determining whether a defect is trivial as a matter of law, 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, quoting Caldwell v. Village of Is. Park, 304 N.Y. 268, 274, 107 N.E.2d 441;see Schiller v. St. Francis Hosp., Roslyn, N.Y., 108 A.D.3d at 758, 970 N.Y.S.2d 241;Brenner v. Herricks Union Free Sch. Dist., 106 A.D.3d 766, 767, 964 N.Y.S.2d 605). There 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 v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;see Brenner v. Herricks Union Free Sch. Dist., 106 A.D.3d at 767, 964 N.Y.S.2d 605). Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable ( see Brenner v. Herricks Union Free Sch. Dist., 106 A.D.3d at 767, 964 N.Y.S.2d 605;Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 931 N.Y.S.2d 650;Aguayo v. New York City Hous. Auth., 71 A.D.3d at 926, 897 N.Y.S.2d 239).
In support of those branches of the motion and cross motion of the respective defendants which were for summary judgment dismissing the complaint insofar as asserted against each of them, they made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the alleged defect in a metal sidewalk cellar door was trivial, and did not possess the characteristics of a trap or nuisance ( see James v. Newport Gardens, Inc., 70 A.D.3d 1002, 896 N.Y.S.2d 116;Hawkins v. Carter Community Hous. Dev. Fund Corp., 40 A.D.3d 812, 813, 835 N.Y.S.2d 731;Bekritsky v. TACS–4, Inc., 27 A.D.3d 680, 681, 815 N.Y.S.2d 587;D'Arco v. Pagano, 21 A.D.3d 1050, 1051, 801 N.Y.S.2d 158). In opposition, the plaintiff failed to raise a triable issue of fact.
Therefore, the Supreme Court properly granted these branches of the motion and cross motion of the respective defendants which were for summary judgment dismissing the complaint insofar as asserted against each of them. RIVERA, J.P., LOTT, MILLER and HINDS–RADIX, JJ., concur.