Cardona-Torres v. City of N.Y.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MARK C. DILLON
• Citation: Cardona-Torres v. City of N.Y., 2013 NY Slip Op 5870, 109 A.D.3d 862, 972 N.Y.S.2d 582 (N.Y. App. Div. 2013)
• Decision Date: 18 September 2013
• Parties: Blanca Cardona–TORRES, appellant, v. CITY OF NEW YORK, defendant, Jamaica Seven, LLC, et al., respondents.

109 A.D.3d 862

972 N.Y.S.2d 582

2013 N.Y. Slip Op. 05870

Blanca Cardona–TORRES, appellant,

v. CITY OF NEW YORK, defendant,Jamaica Seven, LLC, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 18, 2013.

Marder, Eskesen & Nass, New York, N.Y. (Kenneth Marder of counsel), for appellant.

Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol of counsel), for respondents.

MARK C. DILLON, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SYLVIA O. HINDS–RADIX, JJ.

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, Queens County (Kerrigan, J.), dated December 9, 2011, as granted that branch of the motion of the defendants Jamaica Seven, LLC, and Jamaica Seven Properties, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Jamaica Seven, LLC, and Jamaica Seven Properties, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them is denied.

On February 4, 2009, the plaintiff allegedly sustained injuries when she tripped and fell due to a difference in elevation between a section of the brick entranceway to the building in which she lived and the adjoining concrete sidewalk. She commenced this action to recover damages for personal injuries against the owners of the building, the defendants Jamaica Seven, LLC, and Jamaica Seven Properties, LLC (hereinafter together the Jamaica Seven defendants), and the City of New York. The Jamaica Seven defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them on the basis that the subject defect was trivial and, therefore, nonactionable. The Supreme Court granted that branch of the Jamaica Seven defendants' motion.

“Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law” ( Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 855, 931 N.Y.S.2d 336;see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489). “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 circumstances of the injury’ ” ( Turuseta v. Wyassup–Laurel Glen Corp., 91 A.D.3d 632, 633, 937 N.Y.S.2d 240, quoting Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489;see Brenner v. Herricks Union Free Sch. Dist., 106 A.D.3d 766, 767, 964 N.Y.S.2d 605). There is no “minimal dimension test” or per se rule that a defect, in order to be actionable, must be a certain height or depth ( Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;see Milewski v. Washington Mut. Inc., 88 A.D.3d at 856,...