GORODETSKAYA v. DALE REALTY CORP (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Orlando Marrazzo, J.), dated July 3, 2024.  The order granted the defendants' motion for summary judgment dismissing the amended complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the amended complaint is denied.

“A defendant seeking dismissal of a complaint on the basis that [an] 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.  Only then does the burden shift to the plaintiff to establish an issue of fact” (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 79, 19 N.Y.S.3d 802, 41 N.E.3d 766;  see Rubin v. Sivan Merrick, LLC, 235 A.D.3d 789, 790, 227 N.Y.S.3d 420).  “Generally, the issue of whether a dangerous or defective condition exists ․ depends on the facts of each case and is a question of fact for the jury” (Burtis v. Town of Hempstead, 237 A.D.3d 885, 886, 232 N.Y.S.3d 556 [internal quotation marks omitted];  see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489).  “In determining whether a defect is trivial, the court must examine all of the facts presented, including the ‘width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury’ ” (Deviva v. Bourbon St. Fine Foods & Spirit, 116 A.D.3d 654, 655, 983 N.Y.S.2d 295, quoting Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489;  see Genutis v. 555 Dekalb Ave., LLC, 241 A.D.3d 878, 880, 237 N.Y.S.3d 747).

Here, the defendants failed to establish, prima facie, that the condition that allegedly caused the plaintiff to fall was trivial and not actionable (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 82–84, 19 N.Y.S.3d 802, 41 N.E.3d 766).  The photographs submitted by the defendants in support of their motion were not properly authenticated and, thus, not admissible (see Sattar v. City of New York, 201 A.D.3d 756, 757, 159 N.Y.S.3d 511;  Gennaro v. Cord Meyer Dev. Co. & LLC, 57 A.D.3d 725, 726, 871 N.Y.S.2d 214).  The excerpts from the plaintiff's deposition testimony, her testimony at a hearing pursuant to General Municipal Law § 50–h, and Marotta's deposition testimony, submitted by the defendants in support of their motion, failed to describe the condition at issue with sufficient specificity to establish, as a matter of law, that the condition was trivial and not actionable (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 82–84, 19 N.Y.S.3d 802, 41 N.E.3d 766;  Genutis v. 555 Dekalb Ave., LLC, 241 A.D.3d at 880, 237 N.Y.S.3d 747).

The defendants also failed to establish, prima facie, their entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against Marotta on the ground that there was insufficient evidence to pierce the corporate veil (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;  see generally Midson v. Meeting House Lane Med. Practice, P.C., 230 A.D.3d 673, 678, 217 N.Y.S.3d 629).  A defendant moving for summary judgment does not meet its burden by pointing to gaps in the plaintiff's proof but must affirmatively demonstrate the merit of its defense (see Cooper v. First In Queens, Inc., 229 A.D.3d 761, 763, 217 N.Y.S.3d 95;  Reed v. Watts Water Tech., Inc., 212 A.D.3d 740, 741, 183 N.Y.S.3d 126).  Hence, the burden never shifted to the plaintiff to raise a triable issue of fact.

Since the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law, the Supreme Court should have denied their motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

BRATHWAITE NELSON, J.P., VOUTSINAS, TAYLOR and GOLIA, JJ., concur.