RIVERA v. Condal Distributors, Inc., Defendant. (1997)

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

Lilliam RIVERA, et al., Plaintiffs-Respondents, v. 2300 X-TRA WHOLESALERS, INC., et al., Defendant-Appellant, Condal Distributors, Inc., Defendant.

Decided: May 20, 1997

Before ROSENBERGER, J.P., and NARDELLI, RUBIN and WILLIAMS, JJ.

Peter R. Shipman, for plaintiffs-respondents. Steven G. Fauth, for defendant-appellant.

Order, Supreme Court, Bronx County (Alan Saks, J.), entered January 23, 1997, which, in an action for personal injuries allegedly sustained in a trip and fall over a metal plate affixed to a supermarket floor, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

While plaintiff does not challenge the fact that the metal plate over which she allegedly tripped was no more than one-half inch higher than the floor, “[t]here is no rule that a hole in a public thoroughfare must under all circumstances be of a particular depth before its existence can give rise to a legal liability” (Wilson v. Jaybro Realty & Dev. Co., 289 N.Y. 410, 412, 46 N.E.2d 497). Upon the present record, we cannot say as a matter of law that this projection had “none of the characteristics of a trap or snare” (Morales v. Riverbay Corp., 226 A.D.2d 271, 641 N.Y.S.2d 276).

MEMORANDUM DECISION.

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