BERRY v. ROCKING HORSE RANCH CORPORATION (2008)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated March 25, 2008, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On September 15, 2005, the plaintiff was a guest at the Rocking Horse Ranch (hereinafter the Ranch) participating in a conference sponsored by her employer.   The plaintiff and a coworker were walking on the driveway in front of the main entrance to the Ranch when the plaintiff's left foot allegedly became stuck in a hole, causing her to fall and sustain injuries.   The plaintiff commenced this action against the defendant Rocking Horse Ranch Corporation, which moved for summary judgment dismissing the complaint on the ground that the alleged defect was too trivial to be actionable.   The Supreme Court denied the defendant's motion.   We affirm.

 “The issue of whether a dangerous condition exists on real property depends on the particular facts and circumstances of each case, and generally presents a question of fact for the jury” (Hahn v. Wilhelm, 54 A.D.3d 896, 898, 865 N.Y.S.2d 240;  see Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489).   However, injuries resulting from trivial defects are not actionable (see Hahn v. Wilhelm, 54 A.D.3d at 898, 865 N.Y.S.2d 240;  Portanova v. Kantlis, 39 A.D.3d 731, 732, 833 N.Y.S.2d 652;  Herring v. Lefrak Org., 32 A.D.3d 900, 821 N.Y.S.2d 624).   A court determining whether or not a defect is trivial must examine “the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect along with the ‘time, place and circumstance’ of the injury” (Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489, quoting Caldwell v. Village of Is. Park, 304 N.Y. 268, 274, 107 N.E.2d 441;  see Boxer v. Metropolitan Transp. Auth., 52 A.D.3d 447, 448, 859 N.Y.S.2d 709;  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;  Corrado v. City of New York, 6 A.D.3d 380, 773 N.Y.S.2d 894).  “[T]here is no ‘minimal dimension test’ or per se rule that a defect must be of a certain height or depth in order to be actionable” (Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489).

 Here, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law.   Contrary to the defendant's contention, the evidence submitted in support of its motion for summary judgment, including the purported photographs of the accident site that were of poor quality, were insufficient to demonstrate, as a matter of law, that the alleged driveway condition was too trivial to be actionable (see Hahn v. Wilhelm, 54 A.D.3d at 898-899, 865 N.Y.S.2d 240;  Boxer v. Metropolitan Transp. Auth., 52 A.D.3d at 448, 859 N.Y.S.2d 709;  Portanova v. Kantlis, 39 A.D.3d at 732, 833 N.Y.S.2d 652;  Herring v. Lefrak Org., 32 A.D.3d at 901, 821 N.Y.S.2d 624;  Maxson v. Brentwood Union Free School Dist., 31 A.D.3d at 507, 818 N.Y.S.2d 567;  Corrado v. City of New York, 6 A.D.3d at 380, 773 N.Y.S.2d 894).   Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment.

The defendant's remaining contentions either are without merit or have been rendered academic by our determination.