HABER v. CVS PHARMACY INC (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered October 7, 2020.  The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained on March 30, 2018, when she tripped and fell due to a height differential between a curb and a sidewalk within the defendants’ premises.  The defendants moved for summary judgment dismissing the complaint, contending that the condition at issue was trivial and not actionable.  The Supreme Court granted the defendants’ motion, and the plaintiff appeals.

A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;  Boesch v. Comsewogue Sch. Dist., 195 A.D.3d 895, 896, 146 N.Y.S.3d 503).  “A defendant seeking dismissal of a complaint on the basis that [an] alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses.  Only then does the burden shift to the plaintiff to establish an issue of fact” (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 79, 19 N.Y.S.3d 802, 41 N.E.3d 766).  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 at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]).  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 (id. at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]).  “Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” (Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 984, 931 N.Y.S.2d 650;  see Baldasano v. Long Is. Univ., 143 A.D.3d 933, 934, 40 N.Y.S.3d 175).

Here, in support of their motion, the defendants submitted, inter alia, the deposition testimony of the plaintiff and photographs of the accident site, which established, prima facie, that the height differential between the sidewalk and the curb was physically insignificant and that the characteristics 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 at 79, 19 N.Y.S.3d 802, 41 N.E.3d 766;  Boesch v. Comsewogue Sch. Dist., 195 A.D.3d at 896, 146 N.Y.S.3d 503;  Kam Lin Chee v. DiPaolo, 138 A.D.3d 780, 782–783, 31 N.Y.S.3d 509;  Joseph v. Villages at Huntington Home Owners Assn., Inc., 39 A.D.3d 481, 482, 835 N.Y.S.2d 231).  The difference in height between the two surfaces was less than one inch, the incident occurred in the daytime hours under clear conditions, and there were no crowds that obscured the plaintiff's view of the sidewalk as she traversed it.  In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.

IANNACCI, J.P., MILLER, CHRISTOPHER and WAN, JJ., concur.