SHALAMAYEVA v. PARK 83RD STREET CORP (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County, (LeVine, J.), dated April 13, 2005, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff allegedly tripped and fell over a height differential of approximately 1 3/434 inches between the concrete walkway and a raised platform area abutting the entrance of the defendant's building.   The plaintiff alleged, inter alia, that it was dark outside and that the area was not properly illuminated at the time of the accident.

 Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular circumstances of each case and is generally a question of fact for the jury (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489).   Here, the defendant failed to establish, prima facie, that the difference in elevation between the concrete walkway and the platform was trivial and nonactionable as a matter of law (see Fasano v. Green-Wood Cemetery, 21 A.D.3d 446, 799 N.Y.S.2d 827).   Moreover, the evidence tendered by the defendant failed to address the plaintiff's allegations that inadequate lighting was a proximate cause of the accident (see Miner v. Northport Yacht Club, 15 A.D.3d 362, 790 N.Y.S.2d 46;  Scher v. Stropoli, 7 A.D.3d 777, 776 N.Y.S.2d 870;  Swerdlow v. WSK Props. Corps., 5 A.D.3d 587, 588, 772 N.Y.S.2d 864).   Inasmuch as the defendant failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to establish the existence of a triable issue of fact, and the sufficiency of the plaintiff's papers need not be considered (see Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400).

The defendant's remaining contentions are without merit.