DONATI v. (and a third-party action). (2007)

In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Westchester County (La Cava, J.), entered November 15, 2005, which, inter alia, granted the motion of the defendant Tommy's, LLC, d/b/a Morningside Pub, for summary judgment dismissing the complaint insofar as asserted against it, and (2), as limited by his brief, from so much of an order of the same court entered March 3, 2006, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order entered November 15, 2005, is dismissed, as that order was superseded by the order entered March 3, 2006, made upon reargument;  and it is further,

ORDERED that the order entered March 3, 2006, is reversed insofar as appealed from, on the law, upon reargument, the order entered November 15, 2005, is vacated, and the motion of the defendant Tommy's, LLC, d/b/a Morningside Pub, for summary judgment dismissing the complaint insofar as asserted against it is denied;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff allegedly tripped and fell over a hose that lay across less than half the doorway of the bar owned by the defendant Tommy's, LLC, d/b/a Morningside Pub (hereinafter the Pub).   The hose was attached to an air conditioner located over the front doorway, and ran down the front of the Pub to where it lay in the walkway.

The plaintiff commenced the instant action against, among others, the Pub, alleging negligence.   The Pub moved for summary judgment dismissing the complaint insofar as asserted against it, contending that the alleged condition was too trivial to be actionable.   The Supreme Court determined that the Pub satisfied its burden of showing that the location of the hose in less than half the walkway was a trivial defect, and did not have the characteristics of a trap or snare (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489).   The court further found that, in opposition, the plaintiff failed to raise a triable issue of fact.   We disagree.

Under the circumstances of this case, a triable issue of fact exists as to whether the alleged condition was too trivial to be actionable (see Trincere v. County of Suffolk, supra;  Mishaan v. Tobias, 32 A.D.3d 1000, 821 N.Y.S.2d 640;  Herring v. Lefrak Org., 32 A.D.3d 900, 821 N.Y.S.2d 624;  Maxson v. Brentwood Union Free School Dist., 31 A.D.3d 506, 507, 818 N.Y.S.2d 567;  Fairchild v. J. Crew Group, Inc., 21 A.D.3d 523, 524, 800 N.Y.S.2d 735;  Stelmack v. Town of Oyster Bay Hous. Auth., 295 A.D.2d 594, 744 N.Y.S.2d 191;  Adsmond v. City of Poughkeepsie, 283 A.D.2d 598, 725 N.Y.S.2d 80).