WEATHERSPOON v. MAZAL UBRACHA 101 LLC (2025)

Order, Supreme Court, New York County (Eric Schumacher, J.), entered on or about July 25, 2024, which, to the extent appealed from as limited by the briefs, granted defendant Teng Dragon of 8 Ave, Inc.’s motion for summary judgment and dismissed the complaint in its entirety, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff seeks to recover damages for personal injuries sustained when she tripped and fell over the raised edge of a cellar door in the sidewalk.

Defendant Teng Dragon, as the party seeking dismissal of the complaint on the basis that the alleged defect is trivial, “must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 79, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015];  see also Trinidad v. Catsimatidis, 190 A.D.3d 444, 444–445, 140 N.Y.S.3d 482 [1st Dept. 2021]).  While it is true that “there 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 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997]), producing measurements of the defect together with evidence of the surrounding circumstances is required for a prima facie showing that the defect was trivial as a matter of law (see Hutchinson, 26 N.Y.3d at 79, 19 N.Y.S.3d 802, 41 N.E.3d 766).  Photographs produced by the plaintiff appear to show a non-trivial defect in the raised cellar door, and the testimony of defendant Mazal Ubracha 101 LLC's principal indicates a surface differential between the sidewalk and cellar door of approximately one inch.  The Court of Appeals has made it clear that summary judgment should not be granted in a case in which “the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive” (id. at 84, 19 N.Y.S.3d 802, 41 N.E.3d 766;  see Gogu v. Gap, Inc., 180 A.D.3d 439, 440, 118 N.Y.S.3d 587 [1st Dept. 2020]).  Teng Dragon has not provided the actual measurements of the defect here, and thus, making every favorable inference in favor of the nonmovant plaintiff, has failed to establish its prima facie entitlement to summary judgment (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]).

For the same reason, summary judgment should not have been granted to defendant Mazal Ubracha, who never separately moved for said relief.