Santacruz v. Taco Bell of Am., LLC

McAndrew Conboy & Prisco LLP, Melville, N.Y. (Mary C. Azzaretto of counsel), for appellant.

Rimland & Associates, New York, N.Y. (Evan Spencer of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Brown, J.), entered September 11, 2014, which denied its 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 granted.

Generally, the issue of whether a condition is dangerous or defective depends on the facts of each case, and is a question of fact for the jury (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Platkin v. County of Nassau, 121 A.D.3d 879, 994 N.Y.S.2d 636 ; Martyniak v. Charleston Enters., LLC, 118 A.D.3d 679, 987 N.Y.S.2d 413 ; Freas v. Tilles Ctr., 89 A.D.3d 680, 931 N.Y.S.2d 708 ). However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian 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 879, 994 N.Y.S.2d 636 ; Martyniak v. Charleston Enters., LLC, 118 A.D.3d at 679, 987 N.Y.S.2d 413 ; Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 927, 897 N.Y.S.2d 239 ). There is no “minimal dimension test or per se rule” that the condition must be of a certain

height or depth 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 [internal quotation marks omitted]; see Martyniak v. Charleston Enters., LLC, 118 A.D.3d at 679, 987 N.Y.S.2d 413 ). 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 Grosskopf v. 8320 Parkway Towers Corp., 88 A.D.3d 765, 930 N.Y.S.2d 661 ). “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” (Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 984, 931 N.Y.S.2d 650 ; see Adler v. QPI–VIII, LLC, 124 A.D.3d 567, 2 N.Y.S.3d 162, lv. granted 25 N.Y.3d 903, 2015 WL 1526006 ; Zelichenko v. 301 Oriental Blvd., LLC, 117 A.D.3d 1038, 1039, 986 N.Y.S.2d 615, lv. granted 24 N.Y.3d 904, 2014 WL 4548565 ; Aguayo v. New York City Hous. Auth., 71 A.D.3d at 927, 897 N.Y.S.2d 239 ).

Here, the defendant established its entitlement to judgment as a matter of law by submitting, inter alia, a transcript of the plaintiff's deposition testimony, as well as photographs of the

alleged defect, which the plaintiff admitted fairly and accurately depicted the alleged defect that allegedly caused her to trip and fall. Upon applying all of the relevant factors, we conclude that the evidence submitted by the defendant, in particular the aforementioned photographs, established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance and, therefore, was not actionable (see Schiller v. St. Francis Hosp., Roslyn, N.Y., 108 A.D.3d 758, 970 N.Y.S.2d 241 ; Grosskopf v. 8320 Parkway Towers Corp., 88 A.D.3d at 765, 930 N.Y.S.2d 661 ; Joseph v. Villages at Huntington Home Owners Assn., Inc., 39 A.D.3d 481, 835 N.Y.S.2d 231 ).

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.