WILSON v. TIME WARNER CABLE INC (2004)

Appeal from an order of the Supreme Court (Relihan Jr., J.), entered September 19, 2003 in Broome County, which denied defendant's motion for summary judgment dismissing the complaint.

Plaintiff contends that she fell on September 3, 1998 and sustained injuries while exiting defendant's business premises after her “foot came down on the very uneven part of the crack” of defendant's sidewalk.   Plaintiff, who visited the location monthly to pay her cable bill, did “not recall having noticed the drop in the sidewalk” and, in any event, the alleged drop in sidewalk elevation was “less obvious coming out than going in.”   She commenced this action alleging, inter alia, that defendant did not properly install and reasonably maintain the sidewalk, neglected to conduct regular inspections and failed to post warning signs.   Following joinder of issue, defendant moved for summary judgment dismissing the complaint on the basis that, among other things, any alleged defect in the sidewalk was trivial.   Supreme Court denied the motion, prompting this appeal.

 “Whether a particular height difference between sidewalk slabs constitutes a dangerous or defective condition depends on the peculiar facts and circumstances of each case, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place, and circumstances of the injury” (Tesak v. Marine Midland Bank, 254 A.D.2d 717, 717-718, 678 N.Y.S.2d 226 [1998] [citation omitted];  see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ).   Accordingly, the issue is normally a jury question unless the defendant's proof establishes, as a matter of law, that the alleged defect was too trivial to be actionable (see Trincere v. County of Suffolk, supra at 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489;  Lamarre v. Rensselaer County Plaza Assoc., 303 A.D.2d 914, 914-915, 758 N.Y.S.2d 182 [2003];  Maloid v. New York State Elec. & Gas Corp., 257 A.D.2d 712, 713, 682 N.Y.S.2d 734 [1999] ) and “possessed none of the characteristics of a trap or snare” (Julian v. Sementelli, 234 A.D.2d 866, 868, 651 N.Y.S.2d 678 [1996] ).   Summary judgment will be denied where the plaintiff comes forward with conflicting evidence resulting in triable issues of fact (see Denmark v. Wal-Mart Stores, 266 A.D.2d 776, 776-777, 699 N.Y.S.2d 499 [1999];  Tracy v. St. Patrick's Church, 234 A.D.2d 871, 871-872, 651 N.Y.S.2d 680 [1996];  Evans v. Pyramid Co. of Ithaca, 184 A.D.2d 960, 960, 584 N.Y.S.2d 944 [1992] ).

 Here, upon review of the record, we cannot say that Supreme Court erred in denying defendant's motion.   For example, the photographs do not conclusively establish the width of the gap or the difference in elevation, and the parties' affidavits are similarly conflicting.   While one of defendant's employees averred that “there was no more than a quarter of an inch to a half inch difference in elevation between the two concrete slabs,” plaintiff indicates that there was a “deep crevice between the slabs * * * a full inch across and [1 1/212] to [1 3/434] inches deep.”   Furthermore, given all the circumstances, including the location and angle of the alleged defect near defendant's entrance/exit, we cannot conclude as a matter of law at this juncture that the claimed defect did not constitute “a trap for the unwary” (Tesak v. Marine Midland Bank, supra at 718, 678 N.Y.S.2d 226).

We are also not persuaded by defendant's contention that summary judgment should have been granted because the claimed defect was “open and obvious.”   Although proof in that regard is relevant to plaintiff's “failure to warn” claims and impacts the determination of comparative negligence and the foreseeability of the accident, her alleged familiarity with the accident site would not, as a matter of law, relieve defendant of its duty to maintain its premises in a reasonably safe condition (see MacDonald v. City of Schenectady, 308 A.D.2d 125, 129, 761 N.Y.S.2d 752 [2003];  Soich v. Farone, 307 A.D.2d 658, 659-660, 763 N.Y.S.2d 168 [2003] ).   Given the unresolved issues in the record herein, we find no basis for summary judgment relief at this juncture.

ORDERED that the order is affirmed, with costs.

CARDONA, P.J.

MERCURE, CREW III, CARPINELLO and MUGGLIN, JJ., concur.