WIEDENBECK v. LAWRENCE (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum:  Plaintiffs commenced this premises liability action seeking damages for injuries Patricia Wiedenbeck (plaintiff) allegedly sustained when she tripped and fell on a ridged metal threshold strip attached to the step in the entryway of defendants' commercial building.  Supreme Court granted defendants' motion for summary judgment dismissing the complaint.  We reverse.

We agree with plaintiffs that defendants failed to sustain their initial burden of establishing as a matter of law that the threshold strip was not inherently dangerous or defective (see Grefrath v. DeFelice, 144 A.D.3d 1652, 1653, 41 N.Y.S.3d 845 [4th Dept. 2016] ).  “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case” (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] [internal quotation marks omitted];  see Hayes v. Texas Roadhouse Holdings, LLC, 100 A.D.3d 1532, 1533, 954 N.Y.S.2d 348 [4th Dept. 2012] ), and the existence or nonexistence of a defect or dangerous condition “is generally a question of fact for the jury” (Trincere, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;  see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015];  Tesak v. Marine Midland Bank, 254 A.D.2d 717, 717–718, 678 N.Y.S.2d 226 [4th Dept. 1998] ).  Defendants' submissions in support of their motion included excerpts of plaintiffs' deposition testimony and defendants' affidavits, which raised a question of fact whether the threshold strip on the step created an unreasonably dangerous or defective condition.  We further conclude that summary judgment dismissing the complaint was not warranted on the ground that the alleged defect was, as a matter of law, too trivial to be actionable.  It is well settled that “a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it ‘unreasonably imperil[s] the safety of’ a pedestrian” (Hutchinson, 26 N.Y.3d at 78, 19 N.Y.S.3d 802, 41 N.E.3d 766, quoting Wilson v. Jaybro Realty & Dev. Co., 289 N.Y. 410, 412, 46 N.E.2d 497 [1943] ).  Here, it is impossible to ascertain from the black and white photographs submitted by defendants in support of the motion the width, depth, elevation, height differential or actual appearance of the threshold, and thus defendants failed to establish that the defect was, in fact, trivial.  In addition, the threshold and step were located in a doorway, “where a person's attention would be drawn to the door, not to the [step]” (Tesak, 254 A.D.2d at 718, 678 N.Y.S.2d 226;  see generally Belsinger v. M & M Bowling & Trophy Supplies, Inc., 108 A.D.3d 1041, 1042, 969 N.Y.S.2d 644 [4th Dept. 2013] ).

Even assuming, arguendo, that defendants' submissions were sufficient to meet their prima facie burden of establishing that no dangerous or defective condition existed, we conclude that plaintiffs' submissions in opposition raised a triable issue of fact (see generally Hutchinson, 26 N.Y.3d at 82, 19 N.Y.S.3d 802, 41 N.E.3d 766;  Grefrath, 144 A.D.3d at 1653–1654, 41 N.Y.S.3d 845).  Indeed, plaintiffs submitted the affidavit of their expert, who opined that the tiers of the threshold posed an unsafe and defective condition that caused or contributed to plaintiff's fall (see generally Murphy v. Conner, 84 N.Y.2d 969, 972, 622 N.Y.S.2d 494, 646 N.E.2d 796 [1994] ).

Finally, defendants' own submissions in support of their motion affirmatively establish that defendants had constructive, if not actual, notice of the allegedly dangerous condition (see generally Harris v. Seager, 93 A.D.3d 1308, 1308–1309, 941 N.Y.S.2d 415 [4th Dept. 2012] ).