GIGLIOTTI v. ST STANISLAUS KOSTKA ROMAN CATHOLIC CHURCH (1999)

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

Mary GIGLIOTTI and Nicholas Gigliotti, Plaintiffs-Respondents, v. ST. STANISLAUS KOSTKA ROMAN CATHOLIC CHURCH and St. Stanislaus Kostka Roman Catholic Church-Society of Niagara Falls, New York, Defendants-Appellants.

Decided: May 07, 1999

PRESENT: GREEN, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ.

Thomas Speyer of counsel for defendants-appellants. Mark Grossman of counsel for plaintiffs-respondents.

Supreme Court erred in denying defendants' motion for summary judgment dismissing the complaint. Plaintiff Mary Gigliotti seeks to recover damages for injuries she sustained when she tripped and fell over a defect in the concrete driveway of defendant church. The defect consisted of a five-eighths-inch deviation in the height of two adjoining concrete slabs. Such a small defect is not actionable unless it has the characteristics of a trap, snare or nuisance (see, Tesak v. Marine Midland Bank, 254 A.D.2d 717, 678 N.Y.S.2d 226). Defendants met their initial burden, and plaintiffs failed to raise a triable issue of fact whether the alleged defect has the characteristics of a trap, snare or nuisance (cf., Durr v. New York Cent. & H.R.R. Co., 184 N.Y. 320, 324-325, 77 N.E. 397; Tesak v. Marine Midland Bank, supra ).

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM:

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