[*1]
Rodriguez v Clearview Gardens First Corp.
2012 NY Slip Op 51872(U) [37 Misc 3d 1204(A)]
Decided on September 27, 2012
Supreme Court, Queens County
Siegal, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 27, 2012
Supreme Court, Queens County


Anthony Rodriguez and Lisa Rodriguez, Plaintiffs,

against

Clearview Gardens First Corporation, Defendant.




26092/09

Bernice Daun Siegal, J.



The following papers numbered 1 to 12 read on this motion for an order pursuant to CPLR §5015(a) vacating this Court's Order dated November 28, 2011, which granted defendant's summary judgment motion on default; 2) permitting defendant's summary judgment motion to be decided on its merits; 3) deeming the within motion papers as plaintiffs' affirmation in opposition to defendant's summary judgment motion and accepting submission of the affirmation in opposition; 4) setting down a schedule for defendant to submit a reply to the arguments set forth in plaintiffs' opposition to the summary motion; and 5) setting down a date for oral argument of the summary judgment motion.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Affirmation in Opposition......................................................5 - 9

Reply.......................................................................................10 - 12

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Procedural History


On November 28, 2011, defendant was awarded summary judgment on default after meeting their prima facie burden because the plaintiffs failed to submit an opposition to the motion. On May 23, 2012, this court held a conference with the parties and pursuant to CPLR §5105, vacated the default summary judgment motion. This court then set down the underlying summary judgment motion for oral argument in order to make its determination on the merits.

Facts
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In the within action, plaintiff is seeking monetary damages for personal injuries allegedly arising out of a tripping accident that occurred on May 8, 2009, which caused Plaintiff, Anthony Rodriguez, to drop a granite countertop. Plaintiff asserts that he was placing a 300 pound granite countertop into the back of his friend's vehicle when he allegedly "slipped" and dropped the countertop, which broke and fell on his foot. (Anthony Rodriguez Deposition pp. 53-54.) Plaintiff claims that he tripped/slipped on the defendant's premises due to a broken, cracked, uneven, holey, dangerous and defective sidewalk. (Rodriguez Deposition p. 56.)

During deposition the plaintiff testified that prior to tripping he did not see anything amiss, defective or dangerous about the sidewalk. Plaintiff was shown a photograph of the sidewalk and placed an "X" on the spot where he tripped. The defendant produced an inspection of the walkway by Herbert W. Braunstein, P.E. who found that the defect was less than a half inch in vertical and horizontal displacement. Braunstein concluded that the "nature of the defect is so small that it falls under the doctrine of trivial defects."

After oral argument and a review of the underlying papers, defendant's motion for an order pursuant to CPLR §3212 granting summary judgment and dismissing the plaintiff's complaint is granted as more fully set forth below.

Discussion


It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978].) As such, the function of the court on the instant motion is issue finding and not issue determination. (See D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 AD2d 668 [2nd Dept. 1985].) The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issue of fact from the case. (See Zuckerman v. City of New York, 49 NY2d 557 [1980].) If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. (See Id.)

In general, the issue of whether a defective or dangerous condition exists on another's property is a question of fact to be determined by a jury. (Mishaan v. Tobias, 32 AD3d 1000 [2nd Dept. 2006]; Pennella v. 277 Bronx Riv. Rd. Owners, 309 AD2d 793, 794 [2nd Dept. 2003].) "To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendants either created the condition or had actual or constructive notice of it." (Leary v. Leisure Glen Home Owners Ass'n, Inc., 82 AD3d 1169, 1170 [2nd Dept. 2011] citing Dennehy-Murphy v. Topia Serv. Ctr., 61 AD3d 629 [2nd Dept. 2009].) However, "a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip." (Hargrove v. Baltic Estates 278 AD2d 278 [2nd Dept. 2000] [plaintiff tripping over ¾ inch door saddle found to be trivial defect].) No "minimal dimension test" or "per se rule" exists to determine the triviality of a defect. (Boxer v. Metro. Transp. Auth., 52 AD3d 447, 448 [2nd Dept. 2008]; Trincere v. County of Suffolk, 90 NY2d 976, 977 [1997].) A court must examine the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury. (Mishaan v. Tobias, 32 AD3d 1000 [2nd Dept. 2006]; Pennella v. 277 Bronx Riv. Rd. Owners, 309 AD2d 793, 794 [2nd Dept. 2003]; Sanna v. Wal-Mart Stores, Inc., 271 AD2d 595 [2nd Dept. 2000].) [*3]

Here, the defendant made the requisite prima facie showing through the submission of deposition testimony of Herbert W. Braunstein, P.E., an engineering expert, that the alleged elevation in the sidewalk was less than one half of an inch. Braunstein concluded that "the subject walkway is in conformance with all the building codes standards" and that the "nature of the defect is so small that it falls under the doctrine of trivial defects." Once the moving party makes a prima facie showing of entitlement to summary judgment in its favor, it is incumbent upon the opposing party to come forth with evidentiary proof in admissible form sufficient to demonstrate the existence of triable issues of fact. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

In opposition, the plaintiff failed to submit evidence from any engineer, expert, or other individual which described the alleged defective sidewalk. The photograph referred to in the plaintiff's reply affirmation was of poor quality and did not support the claim of a defective sidewalk. No other decipherable photographs were submitted to the court. The plaintiffs did not submit any evidence which disputed Herbert Braunstein's conclusion that the defect was de minimis and less than a half-inch. (Cf. Hahn v. Wilhelm, 54 AD3d 896 [2nd Dept. 2008] [conflicting testimony and photographs about the size of the defect demonstrated a triable issue of fact].) With no conflicting factual evidence, this case may be decided by summary judgment.

The plaintiff further contends that the sidewalk condition here, as a matter of law, is not a trivial defect. This court disagrees. The Court of Appeals has previously determined that a "cement slab that was elevated at an angle a little over a half-inch" constituted a trivial defect. (Trincere v. County of Suffolk, 90 NY2d 976, 977 [1997].) Here, the sidewalk displacement is less than a half-inch. Additionally, if the defect is not a trap or nuisance and might cause a pedestrian to "merely stumble, stub his toes or trip" then the defect is trivial and not actionable. (Hargrove v. Baltic Estates 278 AD2d 278 [2nd Dept. 2000]; Riser v. New York City Hous. Auth., 260 AD2d 564 [2nd Dept. 1999].) Here, the defect was out in the open and did not have characteristics of a trap or snare. The plaintiff would have seen the half-inch displacement if not for carrying a large countertop which blocked his line of sight. Also, the defect would have been readily observable by the plaintiff if he had conducted a brief inspection of the sidewalk before carrying the 300 pound countertop over it.

Plaintiff cites to Sanna v Wal-Mart Stores, 271 AD2d 595 [2nd Dept. 2000], for the proposition that the appearance of the defect is a factor in determining whether the defect was trivial. This case is distinguishable from Sanna where the defect was not readily observable because it blended in with the carpet next to it. In the within action the only object obstructing plaintiff's view of the alleged defect was the 300 pound granite countertop he was carrying. Furthermore, the plaintiff testified in his deposition that the displacement caused him to only "lose his balance" and that "[he] didn't fall." (Rodriguez Deposition pp. 58-59.) The sidewalk defect merely caused the plaintiff to stumble, which then resulted in him letting go of the granite countertop, causing the injury. A sidewalk that causes a "mere stumble" is considered a trivial defect and is not actionable. (Kehoe v. City of New York, 88 AD3d 655 [2nd Dept 2011]; Hargrove v. Baltic Estates 278 AD2d 278 [2nd Dept. 2000]; Riser v. New York City Hous. Auth., 260 AD2d 564 [2nd Dept. 1999].)

The evidence presented to this court supports the finding that this half-inch displacement was a trivial defect that is not actionable. The plaintiffs failed to raise a triable issue of fact. [*4]Accordingly, defendant's motion for summary judgment is granted and plaintiff's complaint is hereby dismissed.

Dated: September 27 , 2012

___________________________

Bernice D. Siegal, J. S. C.