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

619
CA 11-02456
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


MARY ANN WERNER, PLAINTIFF-RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

KALEIDA HEALTH, DEFENDANT-APPELLANT.


ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (KEVIN VASQUEZ
HUTCHESON OF COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (SCOTT M. SCHWARTZ OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered February 14, 2011 in a personal injury action.
The order denied defendant’s motion for summary judgment dismissing
the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when she tripped and fell while
walking down a corridor in Buffalo General Hospital, which was owned
and operated by defendant. Following discovery, defendant moved for
summary judgment dismissing the complaint on the grounds that the
alleged defect was not a dangerous condition as a matter of law, and
that defendant did not create the condition or have actual or
constructive notice of it. We agree with defendant that Supreme Court
erred in denying the motion. In support of the motion, defendant
submitted evidence establishing that the allegedly dangerous condition
was no more than a “nickel size” indentation in the linoleum-tiled
corridor, and that plaintiff was wearing sandals with no backing and
one- or two-inch heels.

     As plaintiff correctly notes, “whether 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 fact for the jury” (Trincere v County of
Suffolk, 90 NY2d 976, 977 [internal quotation marks omitted]).
Nevertheless, where an alleged defect is shown to be “trivial as a
matter of law,” summary judgment is appropriate (Sokolovskaya v
Zemnovitsch, 89 AD3d 918, 918; see generally Trincere, 90 NY2d at 977-
978). Here, defendant’s submissions established that, in light of
“the width, depth, elevation, irregularity and appearance of the
                                 -2-                           619
                                                         CA 11-02456

defect along with the ‘time, place and circumstance’ of the injury”
(Trincere, 90 NY2d at 978), the defect was trivial as a matter of law,
and in response plaintiff failed to raise a triable issue of fact to
defeat the motion (see generally Zuckerman v City of New York, 49 NY2d
557). In light of our decision, we need not address defendant’s
contentions that it did not create the dangerous condition and lacked
constructive notice of its existence.




Entered:   June 15, 2012                       Frances E. Cafarell
                                               Clerk of the Court
