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

Mariel COKER, Appellant, v. Benedict MCMILLAN, et al., Respondents.


Decided: November 06, 2019

LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ. The Bongiorno Law Firm (Edelstein & Grossman, New York, N.Y. [Jonathan I. Edelstein], of counsel), for appellant.


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

The plaintiff commenced this action to recover damages for personal injuries she alleges she sustained when her foot “rolled off” a step of an apartment building owned by the defendants.  Following discovery, the defendants moved for summary judgment dismissing the complaint.  The Supreme Court granted the motion, and the plaintiff appeals.

“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial 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.  Only then does the burden shift to the plaintiff to establish an issue of fact” (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 79, 19 N.Y.S.3d 802, 41 N.E.3d 766).  Here, the evidence attached to the defendants' moving papers indicated that there was a defect on the nosing of the step that was created by wear to the step and was approximately 1/212-inch long and extended down 1/212-inch on the riser.  This alleged defective condition was located on a portion of the step where the plaintiff had to stand while twisting her body to close an exterior door.  Considering the location of the alleged defect together with all other relevant surrounding circumstances, the defendants failed to establish, prima facie, that the alleged defect was trivial as a matter of law (compare Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d at 82 , 19 N.Y.S.3d 802, 41 N.E.3d 766, with Stanley v. New York City Hous. Auth., 161 A.D.3d 1128, 1129, 77 N.Y.S.3d 688).

The defendants also failed to establish their prima facie entitlement to judgment as a matter of law based upon a lack of constructive notice.  A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the allegedly hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Warren v. Walmart Stores, Inc., 105 A.D.3d 732, 733, 963 N.Y.S.2d 150).  “To meet its initial burden on the issue of ․ constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” (Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598–599, 869 N.Y.S.2d 222).  Here, the defendants' moving papers failed to eliminate triable issue of facts as to whether the condition had existed for a sufficient period of time for it to have been discovered and remedied by the defendants in the exercise of reasonable care (see Salvia v. Hauppauge Rte. 111 Assoc., 47 A.D.3d 791, 792, 849 N.Y.S.2d 630).

Accordingly, the defendants' motion for summary judgment dismissing the complaint should have been denied regardless of the sufficiency of the plaintiff's papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The plaintiff's remaining contentions need not be reached in light of our determination.


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