Gigliotti v. St. Stanislaus Kostka Roman Catholic Church

261 A.D.2d 951, 689 N.Y.S.2d 806, 1999 N.Y. App. Div. LEXIS 5058

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint. Plaintiff Mary Gigliotti seeks to recover damages for injuries she sustained when she tripped and fell over a defect in the concrete driveway of defendant church. The defect consisted of a five-eighths-inch deviation in the height of two adjoining concrete slabs. Such a small defect is not actionable unless it has the characteristics of a trap, snare or nuisance (see, Tesak v Marine Midland Bank, 254 AD2d 717). Defendants met their initial burden, and plaintiffs failed to raise a triable issue of fact whether the alleged defect has the characteristics of a trap, snare or nuisance (cf., Durr v New York Cent. & Hudson Riv. R. R. Co., 184 NY 320, 324-325; Tesak v Marine Midland Bank, supra). (Appeal from Order of Supreme Court, Niagara County, Koshian, J.— Summary Judgment.) Present — Green, J. P., Hayes, Wisner, Pigott, Jr., and Scudder JJ.