CRUZ v. DENO WONDER WHEEL PARK

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

Lorna CRUZ, Appellant, v. DENO'S WONDER WHEEL PARK, et al., Respondents.

Decided: September 16, 2002

NANCY E. SMITH, J.P., CORNELIUS J. O'BRIEN, LEO F. McGINITY and SANDRA L. TOWNES, JJ. Jamie C. Rosenberg, New York, NY, for appellant. Bréa Yankowitz & Sosin, P.C., Floral Park, N.Y. (Patrick J. Bréa and Glenn G. Gunsten of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Mason, J.), dated January 29, 2001, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendants' motion for summary judgment was properly granted.   On June 20, 1997, the plaintiff was injured when she allegedly tripped and fell on uneven pavement while walking on the grounds of the defendant Deno's Wonder Wheel Park (hereinafter Deno's).   Photographs taken by the plaintiff on the day of the incident reveal a readily apparent, but shallow, depression in the pavement which, according to the general manager of Deno's, measured 1/8 to 1/4 inch in depth.   After considering the dimensions and appearance of the alleged defect along with the relevant circumstances of the injury (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489), the Supreme Court determined that the defect was open and apparent, possessed none of the characteristics of a trap or snare, and was too trivial to be actionable.   We agree that the defendants established their prima facie entitlement to judgment as a matter of law (see Trincere v. County of Suffolk, supra at 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489;  Hargrove v. Baltic Estates, 278 A.D.2d 278, 717 N.Y.S.2d 320;  Neumann v. Senior Citizens Ctr., 273 A.D.2d 452, 453, 710 N.Y.S.2d 382;  Marinaccio v. LeChambord Rest., 246 A.D.2d 514, 515, 667 N.Y.S.2d 395).

The affidavit of the plaintiff's expert failed to raise a triable issue of fact.   The plaintiff's expert did not reveal when he performed his on-site inspection, did not compare the results of the inspection with the photographs he reviewed, and did not state that the condition of the alleged defect at the time of his inspection was the same as at the time of the accident (see Santiago v. United Artists Communications, 263 A.D.2d 407, 693 N.Y.S.2d 44).

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