CUEBAS v. BUFFALO MOTOR LODGE BEST VALUE INN (2008)

 Plaintiff commenced this action, individually and on behalf of her daughter, seeking damages for injuries sustained by her daughter when she tripped and fell on a sidewalk leading to the door of defendant's premises.   According to plaintiff, her daughter caught her foot between sidewalk slabs with a height differential of approximately one inch, which caused her to fall forward into a glass window adjacent to the door.   Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint.  “Whether a particular height difference between sidewalk slabs constitutes a dangerous or defective condition depends on the peculiar facts and circumstances of each case, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place, and circumstances of the injury” (Tesak v. Marine Midland Bank, 254 A.D.2d 717, 717-718, 678 N.Y.S.2d 226;  see generally Trincere v. County of Suffolk, 90 N.Y.2d 976, 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489).   Based on the record before us, we conclude that defendant failed to meet its burden of establishing as a matter of law that the alleged defect “was too trivial to constitute a dangerous or defective condition” (Schaaf v. Pork Chop, Inc., 24 A.D.3d 1277, 1278, 807 N.Y.S.2d 773;  see Stewart v. 7-Eleven, Inc., 302 A.D.2d 881, 753 N.Y.S.2d 786;  McKenzie v. Crossroads Arena, 291 A.D.2d 860, 861, 738 N.Y.S.2d 779, lv. dismissed 98 N.Y.2d 647, 745 N.Y.S.2d 504, 772 N.E.2d 607).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: