Opinion
2014-05-2
Helen LUPA, Plaintiff–Respondent, v. CITY OF OSWEGO, Defendant–Appellant.
Bond, Schoeneck & King, PLLC, Oswego (Douglas M. McRae of Counsel), for Defendant–Appellant. Sugarman Law Firm, LLP, Syracuse (Leigh A. Lieberman of Counsel), for Plaintiff–Respondent.
Bond, Schoeneck & King, PLLC, Oswego (Douglas M. McRae of Counsel), for Defendant–Appellant. Sugarman Law Firm, LLP, Syracuse (Leigh A. Lieberman of Counsel), for Plaintiff–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking to recover damages for injuries she allegedly sustained when she tripped and fell on the elevated edge of a parking space maintained by defendant. Defendant moved for summary judgment dismissing the complaint on the ground that the defect was trivial as a matter of law. Supreme Court denied the motion, 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 [internal quotation marks omitted]; see Tesak v. Marine Midland Bank, 254 A.D.2d 717, 717–718, 678 N.Y.S.2d 226). “[T]here 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, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489). Although, “in some instances, the trivial nature of the defect may loom larger than another element[,] ... [a] mechanistic disposition of a case based exclusively on the dimension of the [pavement] defect” is inappropriate ( id. at 977–978, 665 N.Y.S.2d 615, 688 N.E.2d 489). Thus, a determination of whether a particular defect is actionable requires examination 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” ( id. at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Tesak, 254 A.D.2d at 717–718, 678 N.Y.S.2d 226).
Here, we conclude that defendant failed to meet its initial burden of establishing that the defect was trivial and nonactionable as a matter of law (see Brenner v. Herricks Union Free Sch. Dist., 106 A.D.3d 766, 767–768, 964 N.Y.S.2d 605;Gafter v. Buffalo Med. Group, P.C., 85 A.D.3d 1605, 1605–1606, 925 N.Y.S.2d 297;Seivert v. Kingpin Enters., Inc., 55 A.D.3d 1406, 1407, 865 N.Y.S.2d 187). The photographs submitted in support of defendant's motion depict a lengthy edge in the pavement that was more than two-thirds of an inch deep and spanned the width of the painted walking area adjacent to the designated handicapped parking space ( see Brenner, 106 A.D.3d at 767, 964 N.Y.S.2d 605). Defendant also submitted plaintiff's deposition testimony, in which she testified that her right foot caught on “a quite high ledge” in the pavement at the rear of the parking space ( see Gafter, 85 A.D.3d at 1605–1606, 925 N.Y.S.2d 297;Tineo v. Parkchester S. Condominium, 304 A.D.2d 383, 383, 759 N.Y.S.2d 9). Although defendant characterizes the edge as “a small, rounded lip in the pavement,” the photographs depict crumbling asphalt, and the edge appears to be irregular, jagged and abrupt as opposed to gradual ( see Jacobsen v. Krumholz, 41 A.D.3d 128, 128–129, 836 N.Y.S.2d 603;McKenzie v. Crossroads Arena, 291 A.D.2d 860, 860–861, 738 N.Y.S.2d 779,lv. dismissed98 N.Y.2d 647, 745 N.Y.S.2d 504, 772 N.E.2d 607;see generally Argenio v. Metropolitan Transp. Auth., 277 A.D.2d 165, 166, 716 N.Y.S.2d 657). Unlike Squires v. County of Orleans, 284 A.D.2d 990, 990, 726 N.Y.S.2d 536, where the trivial defect involved “ ‘a small area’ ” of a “ ‘cracked and crumbly’ ” curb that “had no ‘measurable depth,’ ” plaintiff's deposition testimony and the photographs in this case, particularly the photographs depicting the area closest to plaintiff's vehicle, suggest a measurable edge in the pavement that could pose a tripping hazard. Because defendant “failed to meet [its] initial burden on the motion, we need not consider the sufficiency of plaintiff's opposing papers” ( Gafter, 85 A.D.3d at 1606, 925 N.Y.S.2d 297;see Seivert, 55 A.D.3d at 1407–1408, 865 N.Y.S.2d 187;see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.