BOVINO v. 160 LLC (2008)

Order, Supreme Court, New York County (Louis B. York, J.), entered March 11, 2008, which denied defendant J.R. Equities' motion for summary judgment, unanimously affirmed, without costs.

There is no per se rule with respect to the dimensions of a defect that will give rise to liability on the part of a landowner or other party in control of premises (Argenio v. Metropolitan Transp. Auth., 277 A.D.2d 165, 716 N.Y.S.2d 657 [2000] ).   The motion court properly concluded that summary judgment was inappropriate since a triable issue of fact exists regarding whether the alleged defect is actionable (see generally Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ).   Notably, two height differentials were present at the threshold of the lobby and the stairwell, one between the lobby floor and the door saddle and another between the door saddle and the stairwell floor;  there is conflicting evidence regarding the precise degree of the height differential between the door saddle and the stairwell floor;  and plaintiff's deposition testimony regarding the appearance of the threshold, which plaintiff did not see prior to her accident since the door had been closed, and pictures of the area support plaintiff's contention that the threshold of the lobby and the stairwell presented an actionable defect (see id. at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489;  Fasano v. Green-Wood Cemetery, 21 A.D.3d 446, 446, 799 N.Y.S.2d 827 [2005] [“defendant failed to make a prima facie showing that the condition upon which the plaintiff tripped and fell, a difference in elevation between the landing of a concrete staircase and the adjoining walkway, which ranged up to two inches, for a length of approximately two feet, was trivial and nonactionable as a matter of law.   The plaintiff's testimony together with photographs of the defective condition as well as all other relevant factors and surrounding circumstances demonstrated that there exist triable issues of fact”] ).