SANTULLI v. 60

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

Theresa SANTULLI, Plaintiff-Respondent, v. CITY OF NEW YORK, Defendant-Respondent, Norstar Bank, Defendant, Olympia & York 60 Broad Street Company, Defendant-Appellant.

Decided: October 18, 2001

WALLACH, J.P., RUBIN, BUCKLEY, FRIEDMAN and MARLOW, JJ. Michael O'Leary, for Plaintiff-Respondent. Scott Shorr, for Defendant-Respondent. Carol R. Finocchio, Lawrence B. Goodman, for Defendant-Appellant.

Order, Supreme Court, New York County (Joan Madden, J.), entered on or about November 15, 2000, which, in an action for personal injuries sustained in a trip and fall on the sidewalk in front of a building owned by defendant-appellant, insofar as appealed from, denied appellant's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The sidewalk in question has circular patterns imbedded with expansion joints that, judging from the photographs in the record and in the absence of testimony on point, appear to be at least one inch in width.   Plaintiff asserts that she fell when her two-inch high, and at most one-inch wide heel became caught in a one and a half-inch depression in the circular pattern that was created by missing joint filler, and which created a crevice that was deeper than the other parts of the crevice delineating the circle.   We cannot say, as appellant urges, that the alleged depression was trivial as a matter of law, or that no issue of fact exists as to whether it was open and obvious (see, Gutierrez v. Riverbay Corp., 262 A.D.2d 64, 691 N.Y.S.2d 452;  Nin v. Bernard, 257 A.D.2d 417, 683 N.Y.S.2d 237).