State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 27, 2016 522411 

________________________________

EUGENIA BRUMM,

Respondent,

v

MEMORANDUM AND ORDER

ST. PAUL'S EVANGELICAL

LUTHERAN CHURCH,

Appellant.

________________________________

Calendar Date: September 16, 2016

Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ.

__________

Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert

A. Rausch of counsel), for appellant.

O'Connell & Aronowitz, Saratoga Springs (Paul Pelagalli of

counsel), for respondent.

__________

Garry, J.

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

entered September 18, 2015 in Saratoga County, which denied

defendant's motion for summary judgment dismissing the complaint.

In March 2012, plaintiff tripped and fell on a sidewalk

adjacent to property owned by defendant in the City of Saratoga

Springs, Saratoga County. She commenced this negligence action

asserting that her fall was caused by a deteriorated portion of

the sidewalk.1 Following discovery, defendant moved for summary

1 Pursuant to Code of the City of Saratoga Springs § 203-

225, adjacent landowners are responsible for the maintenance and
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judgment dismissing the complaint, arguing, as pertinent here,

that the sidewalk defect was too trivial to be actionable and

that plaintiff's identification of the defect as the cause of her

fall was speculative. Plaintiff opposed the motion, and Supreme

Court denied it. Defendant appeals.

We agree with Supreme Court that defendant did not meet its

burden to establish on a prima facie basis that the alleged

defect "was too trivial to be actionable" (Chirumbolo v 78 Exch.

St., LLC, 137 AD3d 1358, 1359 [2016]). While property owners are

not held liable for trivial defects, "a small difference in

height or other physically insignificant defect is actionable if

its intrinsic characteristics or the surrounding circumstances

magnify the dangers it poses, so that it unreasonably imperils

the safety of a pedestrian" (Hutchinson v Sheridan Hill House

Corp., 26 NY3d 66, 78 [2015] [internal quotation marks, brackets

and citation omitted]). Factors to be taken into account include

"the width, depth, elevation, irregularity, and appearance of the

defect as well as the time, place, and circumstances of the

injury" (Wilson v Time Warner Cable, 6 AD3d 801, 801 [2004]

[internal quotation marks and citation omitted]; accord Alig v

Parkway Parking of N.Y., Inc., 36 AD3d 980, 981-982 [2007]).

Whether a property condition constitutes an actionable defect is

generally a factual question to be resolved by a jury (see

Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Gillis v

Herzog Supply Co., Inc., 121 AD3d 1334, 1335 [2014]).

Plaintiff, a parishioner at defendant's church, testified

that the weather was clear and there was no snow on the ground at

the time of her fall. She was approaching the church in the late

morning, carrying a handbag and a binder, when the toe of her

right foot caught on something. As she took the next step, her

left ankle rolled and she fell. She was taken to a hospital for

treatment of serious injuries to her ankle, wrist and hand. At

the time of her fall, plaintiff did not look at the sidewalk to

determine the precise cause, but she returned to the site

approximately one month later and identified a cracked, uneven

repair of sidewalks and for any liability resulting from the

failure to do so.
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area of the sidewalk as the location and cause of her fall. Her

expert witness, a forensic architect, photographed a crack

measuring 18 inches long in what he described as a

"deteriorated[] and uneven sidewalk flag," with a raised vertical

surface of approximately one inch. Based upon his observations

and experience, the expert opined with a reasonable degree of

professional certainty that the defect created a dangerous

condition, and that this condition had existed for an extended

period of time before plaintiff's fall.

As defendant contends, there is authority to the effect

that small changes in elevation in walkways that are otherwise in

good condition are trivial and nonactionable as a matter of law

(see e.g. Chirumbolo v 78 Exch. St., LLC, 137 AD3d at 1359

["slight" height differential]; Castle v Six Flags, Inc., 81 AD3d

1137, 1138 [2011] [height differential of about one inch]; Smith

v Wilerdam Prop., Inc., 50 AD3d 1349, 1349-1350 [2008] [height

differential of one-quarter inch]; Trionfero v Vanderhorn, 6 AD3d

903, 904 [2004] [height differential of less than one inch]). 

However, when – as here – a height differential results from the

deterioration in a walkway that is cracked or broken, a triable

issue of fact may be posed as to whether the accident was caused

by an actionable dangerous condition (see Tese-Milner v 30 E.

85th St. Co., 60 AD3d 458, 458 [2009] ["a depressed area with a

rough, uneven surface"]; Hahn v Wilhelm, 54 AD3d 896, 897 [2008]

["a cracked and uneven" surface]; Mishaan v Tobias, 32 AD3d 1000,

1001-1002 [2006] ["a cracked and broken sidewalk"]; see also

Denmark v Wal-Mart Stores, 266 AD2d 776, 777 [1999] [conflicting

testimony as to whether concrete was missing from depressed area

in walkway]). 

Photographs of the sidewalk where plaintiff fell depict a

deteriorated area with various cracks in several adjacent slabs

on the side of the walk bordering the street. In the location

where plaintiff alleges her accident occurred, the deteriorated

area takes up approximately one third of the sidewalk. The

photographs reveal that the cracked section of concrete where

plaintiff fell is depressed below the surface of the rest of the

sidewalk, creating a raised, irregular vertical edge measuring,

as previously noted, approximately one inch high and 18 inches

long. In view of the length and depth of the crack where the
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fall occurred, the uneven surface of the walkway and the overall

size of the deteriorated area, we agree with Supreme Court that

it cannot be determined as a matter of law that the condition

"was so trivial and slight in nature that it could not reasonably

have been foreseen that an accident would happen" (Evans v

Pyramid Co. of Ithaca, 184 AD2d 960, 960 [1992]; accord Tracy v

St. Patrick's Church, 234 AD2d 871, 871-872 [1996]).

Defendant likewise failed to meet its burden to prove on a

prima facie basis that plaintiff's identification of the location

of her fall was too uncertain to establish that the defect was

the proximate cause of the fall. A defendant can meet this

burden by proving "that the plaintiff cannot identify the cause

of his or her fall without engaging in speculation" (Ash v City

of New York, 109 AD3d 854, 855 [2013]; see Lane v Texas Roadhouse

Holdings, LLC, 96 AD3d 1364, 1364 [2012]). However, even when a

plaintiff is unable to identify the cause of a fall with

certainty, "a case of negligence based wholly on circumstantial

evidence may be established if the plaintiff[] show[s] facts and

conditions from which the negligence of the defendant and the

causation of the accident by that negligence may be reasonably

inferred" (Seelinger v Town of Middletown, 79 AD3d 1227, 1229

[2010] [internal quotation marks, brackets and citations

omitted]). 

Here, although plaintiff acknowledged the delay in

identifying the cause of her fall, she testified that she knew

that her toe had caught on some object and decided to examine the

location in question because she knew that it was "where

something has to be." She identified the cracked area as

"exactly that spot that [her] shoe caught." Although plaintiff's

statements were not without some inconsistencies, we find her

testimony adequate to allow a jury to rationally infer that the

cracked area of the sidewalk caused her fall, without being

forced to resort to mere speculation and surmise. Accordingly,

Supreme Court properly denied defendant's summary judgment motion

on this issue (see Dixon v Superior Discounts & Custom Muffler,

118 AD3d 1487, 1488 [2014]; Seelinger v Town of Middletown, 79

AD3d at 1229-1230; DiGiantomasso v City of New York, 55 AD3d 502,

502-503 [2008]).
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Peters, P.J., McCarthy, Clark and Aarons, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court