Fisher v. Society of the New York Hospital

271 A.D.2d 262, 707 N.Y.S.2d 43, 2000 N.Y. App. Div. LEXIS 4118

Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered on or about January 11, 1999, which denied defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Although the motion court improperly considered plaintiffs expert’s affidavit on the issue of whether the street defect to which plaintiff attributes her fall was trivial (cf., Franco v Muro, 224 AD2d 579), its determination that the defect was not so trivial as to be nonactionable as a matter of law was proper. That conclusion was supported by a review of the relevant circumstances, the photographs of the accident site and the size and nature of the defect (see, Figueroa v Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210). We note that defendants’ motions were made solely on the ground that the alleged defect was trivial as a matter of law; whether defendants had a duty to maintain the roadway or created or had notice of the defect are issues improperly raised for the first time on appeal. Concur — Rosenberger, J. P., Williams, Tom and Mazzarelli, JJ.