Summary
reversing lower court's grant of summary judgment for the defendants, finding that the defendant had not shown as a matter of law that the “crack or slot in the grassy area between the curb and sidewalk” was trivial
Summary of this case from Habecker v. KFC U.S. Properties, Inc.Opinion
2012-04-24
Joseph GUIDONE, et al., appellants, v. TOWN OF HEMPSTEAD, et al., respondents.
Paula Schwartz Frome, Garden City, N.Y., for appellants. London Fischer, LLP, New York, N.Y. (James Walsh of counsel), for respondents.
Paula Schwartz Frome, Garden City, N.Y., for appellants. London Fischer, LLP, New York, N.Y. (James Walsh of counsel), for respondents.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Winslow, J.), dated October 29, 2010, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The injured plaintiff allegedly fell when his left foot went into a crack or slot in the grassy area between the curb and the sidewalk abutting his property. Pursuant to its contract with the defendant Town of Hempstead, the defendant Welsbach Electric Corp. performed some work in the area prior to the accident. As a result, the injured plaintiff and his wife, suing derivatively, commenced this action against the defendants. The defendants moved for summary judgment dismissing the complaint, contending that the alleged defect was trivial and not actionable. The Supreme Court granted the motion. The plaintiffs appeal, and we reverse.
Generally, the issue of whether a dangerous condition exists depends on the particular facts of each case, and is properly a question of fact for the jury ( see Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489; DeLaRosa v. City of New York, 61 A.D.3d 813, 877 N.Y.S.2d 439). In determining whether a defect is trivial, 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 [internal quotation marks omitted] ).
The Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint. Here, the evidence submitted by the defendants, including deposition testimony and photographs, was insufficient to demonstrate as a matter of law that the alleged defect was trivial, and therefore not actionable ( see Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 916 N.Y.S.2d 137; Corrado v. City of New York, 6 A.D.3d 380, 773 N.Y.S.2d 894). Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).