DEFENSE SUMMARY JUDGMENT DENIED IN TRIP-AND-FALL ACCIDENT; ISSUE OF FACT AS TO WHETHER DEFECT WAS TRIVIAL

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Luz Rogers v. 575 Broadway Associates, L.P.

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury lawyer)

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In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Weiss, J.), entered April 20, 2011, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On January 30, 2006, the plaintiff exited a building located at 575 Broadway in Manhattan (hereinafter the premises) and, while walking on the Prince Street side of the premises, allegedly tripped and fell on an uneven sidewalk, sustaining injuries. Thereafter, the plaintiff commenced this action against the defendants, 575 Broadway Associates, L.P., 575 Broadway, LLC, and 575 Broadway Corporation. The defendant 575 Broadway, LLC, owns the premises. The defendant 575 Broadway Corporation is an owner of the defendant 575 Broadway Associates, L.P., which was the lessee and responsible for maintaining the premises, including the abutting sidewalks. The Supreme Court denied the defendants' motion for summary judgment dismissing the complaint. The defendants appeal, 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, 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 [internal quotation marks omitted]; see Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 897 N.Y.S.2d 239; Copley v. Town of Riverhead, 70 A.D.3d 623, 895 N.Y.S.2d 452). However, injuries resulting from trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip, are not actionable (see Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 897 N.Y.S.2d 239; Joseph v. Villages at Huntington Home Owners Assn., Inc., 39 A.D.3d 481, 835 N.Y.S.2d 231; Outlaw v. Citibank, N.A., 35 A.D.3d 564, 826 N.Y.S.2d 642).

Here, the evidence submitted by the defendants, including deposition testimony and photographs, was insufficient to demonstrate, as a matter of law, that no defective condition existed on the sidewalk where the plaintiff allegedly tripped and fell, or that, if such a condition did exist, the defect was trivial and did not constitute a trap or nuisance, and therefore was not actionable (see Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 916 N.Y.S.2d 137; Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 896 N.Y.S.2d 400; Hahn v. Wilhelm, 54 A.D.3d 896, 865 N.Y.S.2d 240; Corrado v. City of New York, 6 A.D.3d 380, 773 N.Y.S.2d 894). Moreover, the defendants failed to demonstrate, as a matter of law, that they lacked constructive notice of the alleged defect (see Bolloli v. Waldbaum, Inc., 71 A.D.3d at 620, 896 N.Y.S.2d 400). In light of the defendants' failure to meet their prima facie burden, it is unnecessary to determine whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

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