Summary
holding that a one inch height differential created by a crack in a sidewalk was too trivial to be actionable as a matter of law
Summary of this case from Natijehbashem v. United StatesOpinion
Submitted March 22, 2001.
April 16, 2001.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered November 8, 1999, as granted that branch of the motion of the defendant New Roc Associates, LP, which was for summary judgment dismissing the complaint insofar as asserted against it.
Finger Finger, White Plains, N.Y. (Carl L. Finger of counsel), for appellant.
Gallina Connolly, White Plains, N.Y. (Leslie Dienes Weiss of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when she tripped on a crack in the sidewalk in front of a building owned by the defendant New Roc Associates, LP (hereinafter New Roc). The Supreme Court granted the motion of New Roc for summary judgment dismissing the complaint insofar as asserted against it, determining that the approximately one-inch height difference created by the crack constituted a trivial, nonactionable defect. We affirm.
After New Roc established its prima facie entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. Generally, the issue of whether a dangerous or defective condition exists depends on the peculiar facts and circumstances of each case, and is properly a question of fact for the jury (see, Trincere v. County of Suffolk, 90 N.Y.2d 976, 977; Riser v. New York City Hous. Auth., 260 A.D.2d 564; Marinaccio v. LeChambord Res., 246 A.D.2d 514, 515). However, not every injury allegedly caused by an elevated brick or sidewalk slab need be submitted to a jury (see, Trincere v. County of Suffolk, supra; Riser v. New York City Hous. Auth., supra; Marinaccio v. LeChambord Res., supra; Lopez v. New York City Hous. Auth., 245 A.D.2d 273, 274). Here, scrutiny of the photograph identified by the plaintiff as accurately depicting the pavement where she fell, and consideration of all other relevant factors, support the Supreme Court's determination that the defect, which did not have any of the characteristics of a trap or snare, was too trivial to be actionable as a matter of law (see, Sanna v. Wal-Mart Stores, 271 A.D.2d 595; Lopez v. New York City Hous. Auth., supra; Guerrieri v. Summa, 193 A.D.2d 647). The plaintiff's assertion that triable issues of fact were raised by the time, place, and circumstances of the accident are without merit (see, Sanna v. Wal-Mart Stores, supra; Herrera v. City of New York, 262 A.D.2d 120; Morris v. Nacmias, 245 A.D.2d 432).
SANTUCCI, J.P., GOLDSTEIN, H. MILLER and SCHMIDT, JJ., concur.