LAMARRE v. RENSSELAER COUNTY PLAZA ASSOCIATES

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

Ernest A. LAMARRE et al., Appellants, v. RENSSELAER COUNTY PLAZA ASSOCIATES et al., Respondents.

Decided: March 27, 2003

Before:  CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and KANE, JJ. Powers & Santola L.L.P., Albany (Michael J. Hutter of counsel), for appellants. Law Offices of Kris T. Jackstadt, Albany (Mark P. Donohue of counsel), for Rensselaer County Plaza Associates, respondent. O'Connor, O'Connor, Bresee & First P.C., Albany (Jodie L. Sayers of counsel), for Mall Maintenance of the Capital District, Inc. and others, respondents.

Appeal from an order of the Supreme Court (Canfield, J.), entered February 22, 2002 in Rensselaer County, which granted defendants' motions for summary judgment dismissing the amended complaint.

On the morning of December 14, 1998, plaintiff Ernest A. Lamarre (hereinafter plaintiff) exited his vehicle in the parking lot of the Rensselaer County Plaza in the Town of East Greenbush, Rensselaer County, and walked toward the entrance of a bank located in the Plaza.   According to plaintiff's deposition testimony, as he stepped up from the parking lot onto the curb adjoining the sidewalk, he lost his balance, started to fall backwards, attempted to correct himself, and took a few steps and fell forward across the sidewalk, impacting the glass door to the bank and sustaining injuries to his left shoulder.   Plaintiff and his wife, derivatively, commenced this negligence action against defendant Rensselaer County Plaza Associates, the owner, defendant Nigro Companies, the property manager, and others alleging that the curb was dangerously defective in that it was “worn, uneven and with pieces missing” with a “beveled edge.”   Supreme Court granted defendants' motions for summary judgment dismissing the complaint and, on plaintiffs' appeal, we affirm.

 Reviewing the record in the light most favorable to plaintiffs, we find that summary judgment was properly granted to defendants (see Hopson v. Turf House, 252 A.D.2d 796, 797, 676 N.Y.S.2d 256).   While it is generally a question of fact whether a dangerous or defective condition exists, an examination of the facts of this case-including the appearance and extent of the defect, as well as the time, place and circumstance of plaintiff's injury-supports Supreme Court's conclusion as a matter of law that the defect was too trivial to be actionable (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489;  Vachon v. State of New York, 286 A.D.2d 528, 530, 729 N.Y.S.2d 212;  Maloid v. New York State Elec. & Gas Corp., 257 A.D.2d 712, 713, 682 N.Y.S.2d 734).   Indeed, “ ‘it has been recognized that “[t]he owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection” ’ ” (Maloid v. New York State Elec. & Gas Corp., supra at 713, 682 N.Y.S.2d 734, quoting Guerrieri v. Summa, 193 A.D.2d 647, 647, 598 N.Y.S.2d 4, quoting Liebl v. Metropolitan Jockey Club, 10 A.D.2d 1006, 1006, 204 N.Y.S.2d 670).   Accordingly, Supreme Court correctly granted summary judgment to defendants dismissing plaintiffs' complaint.

ORDERED that the order is affirmed, with one bill of costs.

SPAIN, J.

CARDONA, P.J., MERCURE, CARPINELLO and KANE, JJ., concur.

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