State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 23, 2014 516826 

________________________________

KATHLEEN GILLIS et al., 

Appellants,

v MEMORANDUM AND ORDER

HERZOG SUPPLY COMPANY, INC., 

et al., 

Respondents. 

________________________________

Calendar Date: September 9, 2014

Before: Lahtinen, J.P., Rose, Egan Jr., Lynch and Clark, JJ.

__________

Mainetti, Mainetti & O'Connor, PC, Kingston (Kevin C. Harp

of counsel), for appellants.

Office of Theresa J. Puleo, Albany (Murry S. Brower of

counsel), for respondents.

__________

Lynch, J.

Appeal from an order of the Supreme Court (Melkonian, J.),

entered December 26, 2012 in Ulster County, which granted

defendants' motion for summary judgment dismissing the complaint. 

Plaintiff Kathleen Gillis (hereinafter plaintiff) and her

husband, derivatively, commenced this action to recover for

injuries sustained when plaintiff fell as she stepped across a

curb that separated a parking lot from the entrance to a store

operated by defendant Walgreen Company. Alleging that the curb

was defective because it had "irregular fracturing, chipping,

erosion, surface wear [and] sinking," plaintiffs commenced this

action against Walgreen and defendant Herzog Supply Company,

Inc., the property owner. Supreme Court granted defendants'
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motion for summary judgment dismissing the complaint, and, on

plaintiffs' appeal, we affirm. 

Generally, whether a condition is dangerous or merely a

nonactionable, trivial defect is a factual question for a jury to

resolve (see Alig v Parkway Parking of N.Y., Inc., 36 AD3d 980,

982 [2007]; Lamarre v Rensselaer County Plaza Assoc., 303 AD2d

914, 914-915 [2003]). An owner will not be liable, however, for

"'negligent maintenance by reason of trivial defects on a

walkway, not constituting a trap or nuisance,'" which may cause

"'a pedestrian [to] merely stumble, stub his [or her] toes, or

trip over a raised projection'" (Hardsog v Price Chopper

Operating Co., Inc., 99 AD3d 1130, 1131 [2012], quoting Liebl v

Metropolitan Jockey Club, 10 AD2d 1006, 1006 [1960]; accord Smith

v Wilerdam Prop., Inc., 50 AD3d 1349, 1349 [2008]). Accordingly,

it is sometimes appropriate, after "consideration of such

relevant factors as the dimensions of the alleged defect . . .,

including [its] width, depth, elevation, irregularity, and

appearance . . .[,] as well as the time, place, and circumstances

of the injury" (Castle v Six Flags, Inc., 81 AD3d 1137, 1137-1138

[2011] [internal quotation marks and citations omitted]) to

conclude as a matter of law that a defect is too trivial to be

actionable (see Trincere v County of Suffolk, 90 NY2d 976, 977

[1997]; Trionfero v Vanderhorn, 6 AD3d 903, 903 [2004]). 

Here, defendants' submissions before Supreme Court included

an affidavit by the property owner's maintenance supervisor, the

transcript of his examination before trial and photographs of the

accident location. The supervisor explained that the store

entryway was separated from the black asphalt parking lot by a

raised, red concrete slab. The photographs show that the slab is

tapered downward toward the asphalt as a handicapped access ramp. 

Shortly after learning of plaintiff's fall, the supervisor

discovered a chip of concrete missing from the slab's curb

adjacent to the asphalt. The chip measured 51⁄2 inches wide and

one-half inch deep from its deepest point, tapering to the flat

face of slab. When asked, he was unable to recall any prior

accidents in the area or complaints about the condition of the

slab. 

Plaintiff testified that after she stepped from the parking
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lot onto the concrete slab with her left foot, her right sneaker

became "caught" in the "break" in the slab, and she fell. Later,

she confirmed that her right toe struck the edge of the curb as

she was trying to clear it and step her right foot onto the

concrete slab. It was daylight when plaintiff fell and she

confirmed at her examination before trial that there were no

displays or other visual obstructions present in the entryway. 

Indeed, she observed and easily stepped up from the parking lot

to the slab with her left foot. 

Under these circumstances, and upon review of the color

photographs of the defect, we conclude that defendants met their

initial burden of establishing that the chip in the edge of the

curb was a trivial defect (see Hardsog v Price Chopper Operating

Co., Inc., 99 AD3d at 1131; Castle v Six Flags, Inc., 81 AD3d at

1138; Etkin v Albany Med. Ctr., 77 AD3d 1228, 1229 [2010]). In

response to defendants' prima facie showing, plaintiffs were

obligated to submit "evidence to establish that the alleged

defect has the characteristics of a trap, snare or nuisance"

(Alig v Parkway Parking of N.Y., Inc., 36 AD3d at 982 [internal

quotation marks and citation omitted]). Given the undisputed

circumstances of plaintiff's fall, her attorney's affirmation,

which was of no probative value, was an insufficient response to

defendants' prima facie showing (see Zuckerman v City of New

York, 49 NY2d 557, 563 [1980]). Accordingly, the motion was

properly granted dismissing the complaint. 

Lahtinen, J.P., Rose, Egan Jr. and Clark, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court