Gerber v. West Hempstead Convenience, Inc.

303 A.D.2d 212, 756 N.Y.S.2d 553, 2003 N.Y. App. Div. LEXIS 2403

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Edward Lehner, J.), entered September 20, 2002, which denied defendant-appellant’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Defendant West Hempstead Convenience, Inc., in moving for summary judgment, contends that the alleged defect upon its premises to which plaintiff attributes his trip and fall and ensuing harm was trivial and hence nonactionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]). We cannot conclude, however, that the alleged defect, an area of missing tile in the entranceway of defendant-appellant’s store, was so insignificant. A factual issue is posed as to whether the defect constituted a tripping hazard and, accordingly, summary judgment was properly denied (see Argenio v Metropolitan Transp. Auth., 277 AD2d 165 [2000]). Concur — Nardelli, J.P., Buckley, Rosenberger and Marlow, JJ.