Wolcott v. Forgnone

277 A.D.2d 1039, 716 N.Y.S.2d 192, 2000 N.Y. App. Div. LEXIS 11647

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Plaintiff commenced this action to recover damages for injuries that she sustained when she fell on the front steps of the apartment building where she resided. In support of their motion, defendants submitted excerpts of plaintiff’s deposition indicating that plaintiff fell when her left foot became caught in a “divot” on the second step. Even assuming that the alleged defect is trivial, we conclude that defendants did not establish their entitlement to judgment as a matter of law. Defendants’ submissions raise a triable issue of fact whether the defect has the characteristics of a trap, snare or nuisance (see, Tesak v Marine Midland Bank, 254 AD2d 717; cf., Leverton v Peters Groceries, 267 AD2d 1014; Gigliotti v St. Stanislaus Kostka R. C. Church, 261 AD2d 951, 951-952). (Appeal from Order of Supreme Court, Genesee County, Rath, Jr., J. — Summary Judgment.) Present — Pine, J. P., Hayes, Wisner, Kehoe and Lawton, JJ.