MENDEZ v. DE MILO (2005)

In an action to recover damages for personal injuries, etc., the plaintiff Marina Mendez appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered November 17, 2003, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Marina Mendez allegedly was injured when she tripped and fell after stepping into a depression in a parking lot owned and operated by the defendants.   She and her husband, John Mendez, commenced this action to recover damages for personal injuries.   The defendants moved for summary judgment dismissing the complaint and the Supreme Court granted the motion.   We affirm.

 Although the issue of whether a dangerous condition exists is generally a question for the jury, courts may grant summary judgment when the defect is trivial (see Hargrove v. Baltic Estates, 278 A.D.2d 278, 278, 717 N.Y.S.2d 320;  Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489).   Courts may find a defect trivial upon an examination of all the facts, “including the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstances of the injury” (Corrado v. City of New York, 6 A.D.3d 380, 380, 773 N.Y.S.2d 894).

After considering the appearance of the alleged defect and the other relevant circumstances of the accident, we find that a prima facie showing was made that the defect was too trivial to be actionable (see Kosarin v. W & S Assoc., LP, 6 A.D.3d 503, 774 N.Y.S.2d 420;  Hymanson v. A.L.L. Assoc., 300 A.D.2d 358, 751 N.Y.S.2d 756).   In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the depression possessed any of the attributes of a trap or snare (see Cicero v. Selden Assoc., 295 A.D.2d 391, 743 N.Y.S.2d 551;  Riser v. New York City Hous. Auth., 260 A.D.2d 564, 688 N.Y.S.2d 645).

In view of our determination, the plaintiffs' remaining contention that the depression was not “open and obvious” need not be reached (see Morris v. Greenburgh Cent. School Dist. No. 7, 5 A.D.3d 567, 774 N.Y.S.2d 74;  cf. Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40;  Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923, 925, 767 N.Y.S.2d 44).