Opinion
2013-09588
03-11-2015
Teresa A. TESORIERO, et al., appellants, v. BRINCKERHOFF PARK, LLC, respondent.
Finkelstein & Partners, LLP, Newburgh, N.Y. (George A. Kohl II of counsel), for appellants. Goldberg Segalla, Albany, N.Y. (Mark Donohue of counsel), for respondent.
Finkelstein & Partners, LLP, Newburgh, N.Y. (George A. Kohl II of counsel), for appellants.
Goldberg Segalla, Albany, N.Y. (Mark Donohue of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and JOSEPH J. MALTESE, JJ.
Opinion In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated July 24, 2013, which granted the defendant's 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 denied.On November 13, 2008, the plaintiff Teresa A. Tesoriero (hereinafter the injured plaintiff) allegedly sustained injuries when, while walking in a parking lot owned by the defendant, she stepped into a puddle filling a depression in the pavement, causing her to fall. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendant alleging, among other things, that it was negligent in failing to properly maintain the area where the injured plaintiff fell. The defendant moved for summary judgment dismissing the complaint on the ground that the depression that allegedly caused the injured plaintiff to fall was trivial and therefore, not actionable. The Supreme Court granted the motion.
“[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 quotations marks omitted]; see Martyniak v. Charleston Enters., LLC, 118 A.D.3d 679, 680, 987 N.Y.S.2d 413 ; Freas v. Tilles Ctr., 89 A.D.3d 680, 681, 931 N.Y.S.2d 708 ). “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” (Martyniak v. Charleston Enters., LLC, 118 A.D.3d at 680, 987 N.Y.S.2d 413 ; see Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 927, 897 N.Y.S.2d 239 ). “[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 v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ), and “a mechanistic disposition of a case based exclusively on the dimension of the ... defect is unacceptable” (id. at 977–978, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). To determine whether a defect is trivial as a matter of law, a court must examine “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, quoting Caldwell v. Village of Is. Park, 304 N.Y. 268, 274, 107 N.E.2d 441 ). “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” (Oldham–Powers v. Longwood Cent. Sch. Dist., 123 A.D.3d 681, 682, 997 N.Y.S.2d 687 ).
Here, the Supreme Court erred in granting the defendant's motion for summary judgment dismissing the complaint. In support of its motion, the defendant submitted the affidavit of one of its partners, Brian Zeno, who estimated that the depression in the pavement was gradual, three quarters of an inch deep, and about two feet wide. However, the defendant also submitted a transcript of the injured plaintiff's deposition testimony, wherein she testified that it was raining when she fell, that the depression was filled with rainwater, and that the parking lot “was darker than usual” in that at least one of the overhead lights was not working. Under the circumstances, the evidence the defendant submitted in support of the motion did not demonstrate, prima facie, that the alleged defect was trivial and therefore, not actionable. Since the defendant failed to meet its prima facie burden, the Supreme Court should have denied the motion, regardless of the sufficiency of the plaintiffs' opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
We have not considered the defendant's contention regarding an alternate ground for affirmance, since it was improperly raised for the first time in its reply papers, and not considered by the Supreme Court (see Davis–Hassan v. Siad, 101 A.D.3d 932, 933, 957 N.Y.S.2d 205 ).