SULLIVAN v. COLONIAL WOODS CONDOMINIUMS (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Thomas Whelan, J.), dated July 8, 2016.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On May 24, 2013, the plaintiff Nancy Sullivan (hereinafter the injured plaintiff) allegedly was injured when she tripped and fell on a portion of a driveway adjacent to a concrete apron located in front of a condominium unit garage at 2 Bartlett Commons in Yaphank.  The driveway was a common area and maintained by the defendant.  In February 2014, the injured plaintiff, and her husband suing derivatively (hereinafter together the plaintiffs), commenced this negligence action against the defendant.  After discovery and the filing of the note of issue, the defendant moved for summary judgment dismissing the complaint arguing, inter alia, that the alleged defect over which the injured plaintiff tripped and fell was trivial and therefore not actionable.  The Supreme Court granted the motion, finding that the alleged defect was trivial and therefore not actionable.  Alternatively, the court also determined that the defendant had neither actual nor constructive notice of the alleged defect.  The plaintiffs appeal.

To demonstrate its entitlement to summary judgment in a trip-and-fall case on the basis that the alleged defect was trivial, the defendant was required to make a prima facie showing that the defect was, under the circumstances, physically insignificant, and that the characteristic of the defect or the surrounding circumstances did not increase the risks it posed (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 79, 19 N.Y.S.3d 802, 41 N.E.3d 766;  Melia v. 50 Ct. St. Assoc., 153 A.D.3d 703, 60 N.Y.S.3d 331;  Mscichowski v. 601 BBA, LLC, 134 A.D.3d 996, 22 N.Y.S.3d 506).  In determining whether a defect is trivial, the court must examine all of 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 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted];  see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 77–79, 19 N.Y.S.3d 802, 41 N.E.3d 766).  There is no “minimal dimension test” or “per se rule” that the condition 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 [internal quotation marks omitted];  see Kavanagh v. Archdiocese of City of N.Y., 152 A.D.3d 654, 655, 58 N.Y.S.3d 579).  “ ‘Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable’ ” (Melia v. 50 Ct. St. Assoc., 153 A.D.3d at 704, 60 N.Y.S.3d 331, quoting Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 984, 931 N.Y.S.2d 650).

Here, the defendant, in support of its motion for summary judgment, relied upon, inter alia, the injured plaintiff's deposition testimony, the deposition testimony of the president of the defendant's homeowners' association, and photographs of the accident site.  Considering the evidence presented, particularly the photographs and the plaintiff's description of the time, place, and circumstance of the injury, the defendant established, prima facie, that the alleged defect was trivial as a matter of law and, therefore, not actionable (see Melia v. 50 Ct. St. Assoc., 153 A.D.3d at 704, 60 N.Y.S.3d 331;  Fasone v. Northside Props. Mgt. Corp., 149 A.D.3d 905, 906, 52 N.Y.S.3d 428;  Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 931 N.Y.S.2d 336).  In opposition, the plaintiffs failed to raise a triable issue of fact.

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

Accordingly, we agree with the Supreme Court's determination that the defendant was entitled to summary judgment dismissing the complaint.

MASTRO, J.P., DILLON, COHEN and IANNACCI, JJ., concur.