        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

403
CA 14-01427
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


ANNA GRECO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT,
BUFFALO PLACE, INC. AND MAIN SENECA
CORPORATION, DEFENDANTS-APPELLANTS.


GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (C. CHRISTOPHER BRIDGE OF
COUNSEL), FOR DEFENDANT-APPELLANT MAIN SENECA CORPORATION.

GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR
DEFENDANT-APPELLANT BUFFALO PLACE, INC.

GRECO TRAPP, PLLC, BUFFALO (DUANE D. SCHOONMAKER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Erie County (Joseph
R. Glownia, J.), entered November 12, 2013 in a personal injury
action. The order denied the motion and cross motion of defendants
Main Seneca Corporation and Buffalo Place, Inc., respectively, for
summary judgment dismissing the complaint against them.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when she tripped and fell on the
elevated edge of a sidewalk slab in front of a building owned by
defendant Main Seneca Corporation (Main Seneca) in downtown Buffalo.
Defendant Buffalo Place, Inc. (Buffalo Place) provided management and
maintenance services for the area where the sidewalk was located
pursuant to an agreement with defendant City of Buffalo (City). Main
Seneca moved for summary judgment dismissing the complaint on the
ground that the defect was trivial and, thus, nonactionable as a
matter of law. Buffalo Place cross-moved for summary judgment
dismissing the complaint on that same ground, and on the additional
ground that it owed no duty of care to plaintiff because it did not
own, occupy, control, or make special use of the property at issue.
Supreme Court denied the motion and cross motion, and we affirm.

     “[W]hether a dangerous or defective condition exists on the
property of another so as to create liability depends on the peculiar
facts and circumstances of each case and is generally a question of
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                                                         CA 14-01427

fact for the jury” (Trincere v County of Suffolk, 90 NY2d 976, 977
[internal quotation marks omitted]; see Tesak v Marine Midland Bank,
254 AD2d 717, 717-718). “[T]here is no ‘minimal dimension test’ or
per se rule that a defect must be of a certain minimum height or depth
in order to be actionable” (Trincere, 90 NY2d at 977). Although “in
some instances . . . the trivial nature of the defect may loom larger
than another element[,] . . . [a] mechanistic disposition of a case
based exclusively on the dimension of the [pavement] defect” is
inappropriate (id. at 977-978). Thus, a determination whether a
particular defect is actionable requires examination of “the facts
presented, including the width, depth, elevation, irregularity and
appearance of the defect along with the time, place and circumstance
of the injury” (id. at 978 [internal quotation marks omitted]; see
Tesak, 254 AD2d at 717-718).

      Here, we conclude that Main Seneca and Buffalo Place failed to
meet their initial burden of establishing that the defect was trivial
and nonactionable as a matter of law, and thus the court properly
denied the motion in its entirety and the cross motion to that extent
(see Lupa v City of Oswego, 117 AD3d 1418, 1419; Gafter v Buffalo Med.
Group, P.C., 85 AD3d 1605, 1605-1606; Cuebas v Buffalo Motor
Lodge/Best Value Inn, 55 AD3d 1361, 1362). The photographs of the
alleged defect submitted in support of Main Seneca’s motion, and
incorporated by reference into Buffalo Place’s cross motion, depict
between the adjoining sidewalk slabs an abrupt edge that was one-half
of an inch to three-quarters of an inch in depth, and which appeared
to span a substantial length of the two adjoining slabs (see Lupa, 117
AD3d at 1419). In addition, Main Seneca submitted plaintiff’s
deposition testimony, in which plaintiff testified that her left toe
caught on the edge between the sidewalk slabs (see id.; Gafter, 85
AD3d at 1605-1606; see also McKenzie v Crossroads Arena, 291 AD2d 860,
861, lv dismissed 98 NY2d 647). Because defendants failed to meet
their initial burdens on their respective motion and cross motion, “we
need not consider the sufficiency of plaintiff’s opposing papers”
(Gafter, 85 AD3d at 1606; see Seivert v Kingpin Enters., Inc., 55 AD3d
1406, 1407-1408; see generally Alvarez v Prospect Hosp., 68 NY2d 320,
324).

     We further conclude that the court properly denied that part of
Buffalo Place’s cross motion seeking dismissal of the complaint on the
ground that it owed no duty of care to plaintiff. “[I]t is well
settled that [l]iability for a dangerous condition on property is
predicated upon occupancy, ownership, control or a special use of
[the] premises” (Knight v Realty USA.COM, Inc., 96 AD3d 1443, 1444
[internal quotation marks omitted]; see Clifford v Woodlawn Volunteer
Fire Co., Inc., 31 AD3d 1102, 1103). “The existence of one or more of
these elements is sufficient to give rise to a duty of care[, but
w]here none is present, a party cannot be held liable for injury
caused by the defective or dangerous condition of the property”
(Knight, 96 AD3d at 1444 [internal quotation marks omitted]). In
support of its cross motion, Buffalo Place offered the affidavit of
its manager, who averred that, pursuant to its agreement with the
City, Buffalo Place was not responsible for repairs involving “capital
                                 -3-                           403
                                                         CA 14-01427

improvements” and that plaintiff’s “allegations involved capital
improvements.” Buffalo Place did not address, however, the issue
whether, as part of the management and maintenance duties it assumed
from the City, it was responsible for warning pedestrians of any
hazards in the area it maintained. Nor did Buffalo Place offer any
evidence that the alleged defect in the sidewalk could be made safer
only by means of a capital improvement. In opposition to the cross
motion, plaintiff submitted the agreement between Buffalo Place and
the City which provided, in relevant part, that Buffalo Place would
“assum[e] certain responsibilities . . . for the management,
maintenance[,] and promotion” of an area of Buffalo’s downtown known
as Buffalo Place, and that, specifically, it would provide
“[c]omprehensive maintenance” for Lafayette Square, the area where
plaintiff’s fall occurred. We therefore conclude on the record before
us that there are issues of fact whether Buffalo Place exercised the
requisite level of control over the sidewalk sufficient to hold it
liable for the presence of a dangerous condition on the property (see
Mesler v PODD LLC, 89 AD3d 1533, 1536; Figueroa v Tso, 251 AD2d 959,
959; see also Mollino v Ogden & Clarkson Corp., 243 NY 450, 455), and
whether the contractual obligation of Buffalo Place to provide
“comprehensive maintenance” for the area in question created a duty of
care extending to plaintiff (see Palka v Servicemaster Mgt. Servs.
Corp., 83 NY2d 579, 588; see also Cowsert v Macy’s E., Inc., 79 AD3d
1319, 1319-1320; Riley v ISS Intl. Serv. Sys., 5 AD3d 754, 756-757).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
