LEVERTON v. PETERS GROCERIES INC

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Supreme Court, Appellate Division, Fourth Department, New York.

Margaret B. LEVERTON and David J. Leverton, Plaintiffs-Respondents, v. PETERS GROCERIES, INC., Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  PINE, J.P., WISNER, HURLBUTT and BALIO, JJ. Robert W. Connolly, Syracuse, for defendant-appellant. Gary L. Orenstein, Syracuse, for plaintiffs-respondents.

 Plaintiffs commenced this negligence action to recover damages for injuries sustained by plaintiff Margaret B. Leverton when she tripped and fell over a flange anchoring a handrail extending from the exit door of defendant's grocery store.   Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint.   The flange extends vertically five eighths of an inch above the concrete walkway and extends horizontally from the base of the handrail no more than three quarters of an inch into the walkway.   Defendant met its initial burden by establishing that the alleged defect is trivial (see, Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489), and plaintiffs “failed to raise a triable issue of fact whether the alleged defect has the characteristics of a trap, snare or nuisance” (Gigliotti v. St. Stanislaus Kostka R.C. Church, 261 A.D.2d 951, 952, 689 N.Y.S.2d 806;  see, Guerrieri v. Summa, 193 A.D.2d 647, 598 N.Y.S.2d 4).   The affidavit of plaintiffs' purported expert, a public insurance adjuster, does not establish that he is qualified to render an opinion on the condition of defendant's exit walkway (see, Romano v. Stanley, 90 N.Y.2d 444, 452, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Bova v. County of Saratoga, 258 A.D.2d 748, 749-750, 685 N.Y.S.2d 834).

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: