CRUZ v. NEW YORK CITY HOUSING AUTHORITY (2009)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated January 31, 2008, which denied, as untimely, its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

 “A motion on notice is made when a notice of the motion ․ is served” (CPLR 2211;  see Rivera v. Glen Oaks Vil. Owners, Inc., 29 A.D.3d 560, 817 N.Y.S.2d 293;  Russo v. Eveco Dev. Corp., 256 A.D.2d 566, 683 N.Y.S.2d 566).   In accordance with this rule, the defendant's motion for summary judgment was made on June 29, 2007, when the motion was served, by mail, on the attorney for the plaintiff, and thus was timely (see CPLR 2103 [b][2];  3212;  Rivera v. Glen Oaks Vil. Owners, Inc., 29 A.D.3d 560, 817 N.Y.S.2d 293).   As to the merits, the defendant submitted evidence sufficient to establish, prima facie, that the height differential between the bathroom door saddle over which the plaintiff allegedly tripped and the adjacent floor was slight and trivial and, therefore, not actionable (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489;  Shiles v. Carillon Nursing & Rehabilitation Ctr., LLC, 54 A.D.3d 746, 864 N.Y.S.2d 439;  Ayala v. Gutin, 49 A.D.3d 677, 853 N.Y.S.2d 665;  Hargrove v. Baltic Estates, 278 A.D.2d 278, 717 N.Y.S.2d 320).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.   Contrary to the contention of the plaintiff's expert, the Administrative Code of the City of New York 27-371(h) does not apply to this case since the bathroom door saddle at issue merely separated two interior spaces within the plaintiff's apartment (see Administrative Code of the City of New York § 27-232).