Jason Velasquez, appellant, v. 88 LLC (2026)

Submitted—April 16, 2026

DECISION & ORDER

A/

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Cassandra A. Johnson, J.), entered June 18, 2024.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff commenced this action to recover damages for personal injuries he alleged he sustained when he tripped and fell on a sidewalk in front of premises owned by the defendant.  The plaintiff testified at his deposition that he tripped over a loose brick paver, which lifted when he stepped on it, causing him to fall.  The defendant moved for summary judgment dismissing the complaint.  The plaintiff opposed the motion.  In an order entered June 18, 2024, the Supreme Court granted the motion.  The plaintiff appeals.

“A property owner has a duty to maintain his or her property in a reasonably safe condition” (Bilancione v. Garden Homes Mgmt. Corp., 228 AD3d 716, 716–717).  “A defendant in a premises liability action who moves for summary judgment has the initial burden of making a prima facie showing that no dangerous condition existed on the premises or that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it” (Carey v. Walt Whitman Mall, LLC, 215 AD3d 623, 625;  see Saunders v. Nostrand 1543, LLC, 230 AD3d 1261, 1262).  However, a property owner has no duty to protect or warn against a condition that is trivial in nature (see Bilancione v. Garden Homes Mgmt. Corp., 228 AD3d at 717;  Drew v. N & P USA Realty, LLC, 213 AD3d 734, 734).  “A defendant seeking summary judgment dismissing a cause of action on the ground that an alleged defect is trivial in nature 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” (Bilancione v. Garden Homes Mgmt. Corp., 228 AD3d at 717 [internal quotation marks omitted];  see Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66, 79).

Here, the defendant's submissions, including a transcript of the plaintiff's deposition testimony, photographs, and an expert affidavit from a professional engineer, were insufficient to demonstrate, prima facie, that no defective condition existed or that the alleged condition was trivial and therefore nonactionable (see Rogers v. 575 Broadway Assoc., L.P., 92 AD3d 857, 858).  The defendant's expert's affidavit was insufficient to establish that no actionable defect existed at the time of the accident, as the expert's opinions were based upon an inspection that occurred more than three years after the accident and there was no showing that the area measured and examined by the expert was in the same condition as it was on the date of the accident (see Brothers v. Nisan Maintenance Corp., 231 AD3d 1108, 1110;  Mammina v. State of New York, 230 AD3d 478, 480).  The defendant also failed to establish, prima facie, that it lacked constructive notice of the alleged defective condition (see Bilancione v. Garden Homes Mgmt. Corp., 228 AD3d at 717) or that such condition was a latent defect that could not have been discovered upon a reasonable inspection (see Toro v. McComish, 227 AD3d 1120, 1122).

Accordingly, since the defendant failed to meet its prima facie burden, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

DUFFY, J.P., BARROS, WARHIT and OTTLEY, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court