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

258
CA 13-01020
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


HELEN LUPA, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF OSWEGO, DEFENDANT-APPELLANT.


BOND, SCHOENECK & KING, PLLC, OSWEGO (DOUGLAS M. MCRAE OF COUNSEL),
FOR DEFENDANT-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (LEIGH A. LIEBERMAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Oswego County (Norman
W. Seiter, Jr., J.), entered March 12, 2013. The order denied the
motion of defendant for summary judgment.

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

     Memorandum: Plaintiff commenced this action seeking to recover
damages for injuries she allegedly sustained when she tripped and fell
on the elevated edge of a parking space maintained by defendant.
Defendant moved for summary judgment dismissing the complaint on the
ground that the defect was trivial as a matter of law. Supreme Court
denied the 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
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 of 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).
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                                                         CA 13-01020

     Here, we conclude that defendant failed to meet its initial
burden of establishing that the defect was trivial and nonactionable
as a matter of law (see Brenner v Herricks Union Free Sch. Dist., 106
AD3d 766, 767-768; Gafter v Buffalo Med. Group, P.C., 85 AD3d 1605,
1605-1606; Seivert v Kingpin Enters., Inc., 55 AD3d 1406, 1407). The
photographs submitted in support of defendant’s motion depict a
lengthy edge in the pavement that was more than two-thirds of an inch
deep and spanned the width of the painted walking area adjacent to the
designated handicapped parking space (see Brenner, 106 AD3d at 767).
Defendant also submitted plaintiff’s deposition testimony, in which
she testified that her right foot caught on “a quite high ledge” in
the pavement at the rear of the parking space (see Gafter, 85 AD3d at
1605-1606; Tineo v Parkchester S. Condominium, 304 AD2d 383, 383).
Although defendant characterizes the edge as “a small, rounded lip in
the pavement,” the photographs depict crumbling asphalt, and the edge
appears to be irregular, jagged and abrupt as opposed to gradual (see
Jacobsen v Krumholz, 41 AD3d 128, 128-129; McKenzie v Crossroads
Arena, 291 AD2d 860, 860-861, lv dismissed 98 NY2d 647; see generally
Argenio v Metropolitan Transp. Auth., 277 AD2d 165, 166). Unlike
Squires v County of Orleans (284 AD2d 990, 990), where the trivial
defect involved “ ‘a small area’ ” of a “ ‘cracked and crumbly’ ” curb
that “had no ‘measurable depth,’ ” plaintiff’s deposition testimony
and the photographs in this case, particularly the photographs
depicting the area closest to plaintiff’s vehicle, suggest a
measurable edge in the pavement that could pose a tripping hazard.
Because defendant “failed to meet [its] initial burden on the motion,
we need not consider the sufficiency of plaintiff’s opposing papers”
(Gafter, 85 AD3d at 1606; see Seivert, 55 AD3d at 1407-1408; see
generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
