Abreu v. New York City Housing Auth.

61 A.D.3d 420, 876 N.Y.S.2d 50

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 2009
• Status: Published

Opinion

Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered June 25, 2008, which, in an action for personal injuries sustained in a trip and fall allegedly caused by a crack in a cement ramp sloping down from a rear exit of a residential building owned and operated by defendant, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant’s argument that the crack was trivial as a matter of law was properly rejected by the motion court on the basis of the photographs submitted by defendant depicting a lengthy irregularity in the cement that might have been capable of catching plaintiffs sandal (see Jacobsen v Krumholz, 41 AD3d 128, 128-129 [2007], citing Argenio v Metropolitan Transp. Auth., 277 AD2d 165, 166 [2000]; see also Nin v Bernard, 257 AD2d 417, 418 [1999] [defendant’s expert’s statement that “ ‘it was impossible for all but the sharpest heel or toe to fall within the depression’ hardly constitutes a conclusive refutation of plaintiffs case”]). “[E]ven a trivial defect can sometimes have the characteristics of a snare or a trap” (Herrera v City of New York, 262 AD2d 120, 120 [1999]). Concur—Mazzarelli, J.E, Friedman, Moskowitz and Acosta, JJ.