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

1360
CA 13-00891
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


SYLVIA WILSON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

100 CARLSON PARK, LLC AND CARLSON PARK
ASSOCIATES, DEFENDANTS-APPELLANTS.


WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, ALBANY (CHRISTOPHER
J. MARTIN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

FITZSIMMONS, NUNN & PLUKAS, LLP, ROCHESTER (JASON E. ABBOTT OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered July 31, 2012. The order denied the motion
of defendants for summary judgment dismissing the complaint.

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

     Memorandum: Defendants contend that Supreme Court erred in
denying their motion for summary judgment dismissing the complaint in
this premises liability action arising from plaintiff’s fall on a set
of exterior stairs. We reject that contention. With respect to
constructive notice, we conclude that there is an issue of fact
whether the defect on the subject stairs was visible and apparent, and
defendants failed to meet their initial burden of establishing that
the defect did not “exist for a sufficient length of time prior to the
accident to permit defendant[s’] employees to discover and remedy it”
(Gordon v American Museum of Natural History, 67 NY2d 836, 837; see
Rogers v Niagara Falls Bridge Commn., 79 AD3d 1637, 1638; Kimpland v
Camillus Mall Assoc., L.P., 37 AD3d 1128, 1129). In addition,
defendants failed to establish that the subject defect was “ ‘trivial
as a matter of law’ ” (Werner v Kaleida Health, 96 AD3d 1569, 1570).
“Whether a particular [defect] constitutes a dangerous or defective
condition depends on the peculiar facts and circumstances of each
case, including the width, depth, elevation, irregularity, and
appearance of the defect as well as the time, place, and circumstances
of the injury” (Tesak v Marine Midland Bank, 254 AD2d 717, 717-718,
citing Trincere v County of Suffolk, 90 NY2d 976, 977-978). We
further conclude that plaintiff’s deposition testimony concerning what
caused her to fall was sufficient to create an issue of fact on
causation (see Lane v Texas Roadhouse Holdings, LLC, 96 AD3d 1364,
1364-1365). Finally, with respect to whether the artificial lighting
                                 -2-                          1360
                                                         CA 13-00891

in the area where plaintiff fell was adequate, we conclude that
defendants failed to meet their initial burden of establishing their
entitlement to judgment as a matter of law on that issue (see
generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
