Summary
In Gerber, the court, presumably taking into account the size of the tile, found that whether a missing floor tile was trivial was a question of fact for the jury.
Summary of this case from Ochoa v. Walton Mgt. LLCOpinion
451
March 11, 2003.
Order, Supreme Court, New York County (Edward Lehner, J.), entered September 20, 2002, which denied defendant-appellant's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
William P. Hepner, for plaintiff-respondent.
Marisa Goetz, for defendant-appellant.
Before: Nardelli, J.P., Buckley, Rosenberger, Marlow, JJ.
Defendant West Hempstead Convenience, Inc., in moving for summary judgment, contends that the alleged defect upon its premises to which plaintiff attributes his trip and fall and ensuing harm, was trivial and hence nonactionable (see Trincere v. County of Suffolk, 90 N.Y.2d 976). We cannot conclude, however, that the alleged defect, an area of missing tile in the entranceway of defendant-appellant's store, was so insignificant. A factual issue is posed as to whether the defect constituted a tripping hazard and, accordingly, summary judgment was properly denied (see Argenio v. Metro. Transp. Auth., 277 A.D.2d 165).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.