State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 3, 2016 521141
________________________________
DIANE CHIRUMBOLO,
Appellant,
v
MEMORANDUM AND ORDER
78 EXCHANGE STREET, LLC,
Respondent.
________________________________
Calendar Date: January 7, 2016
Before: Peters, P.J., Garry, Rose and Lynch, JJ.
__________
Robert C. Kilmer, Binghamton, for appellant.
Kenney Shelton Liptak Nowak LLP, Buffalo (Robert A.
Crawford Jr. of counsel), for respondent.
__________
Peters, P.J.
Appeal from an order of the Supreme Court (Reynolds
Fitzgerald, J.), entered February 9, 2015 in Broome County, which
granted defendant's motion for summary judgment dismissing the
complaint.
Plaintiff commenced this action to recover for injuries
sustained when she tripped on a lip created by a height
differential in adjoining concrete slabs while walking on a
sidewalk in front of defendant's property in the City of
Binghamton, Broome County. Following joinder of issue, defendant
moved for summary judgment dismissing the complaint on the ground
that the alleged defect was trivial as a matter of law. Supreme
Court granted the motion, prompting this appeal.
-2- 521141
Viewing the evidence in the light most favorable to
plaintiff (see Gronski v County of Monroe, 18 NY3d 374, 381
[2011]), we find that summary judgment was properly granted to
defendant. A property owner "'may not be cast in damages for
negligent maintenance by reason of trivial defects on a walkway,
not constituting a trap or nuisance, as a consequence of which a
pedestrian might 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]; see Gillis v
Herzog Supply Co., Inc., 121 AD3d 1334, 1135 [2014]). "Whether a
defect is so trivial to preclude liability depends on the
particular facts of each case and requires consideration of such
relevant factors as the dimensions of the alleged defect and the
circumstances surrounding the injury, including the width, depth,
elevation, irregularity, and appearance of the defect 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]; see Hutchinson v Sheridan Hill
House Corp., 26 NY3d 66, 77 [2015]; Medina v State of New York,
133 AD3d 943, 944 [2015]).
Here, defendant's submissions in support of its motion
included plaintiff's deposition testimony and photographs of the
accident site. Plaintiff testified that she was familiar with
the area and had traversed the subject sidewalk approximately 100
times over the course of some 60 years, including earlier on the
day of the accident as well as two weeks prior thereto. She
explained that, as she was walking back to her car from an
insurance office, her left foot "caught the edging" of the
concrete slab adjacent to the one in which she was walking,
causing her to trip. Plaintiff admitted that she was not looking
down at the sidewalk while she was walking and it is undisputed
that, at the time of her fall, the weather was clear, there was
no snow or ice on the ground and the sidewalk was unobstructed
and free of debris. Photographs of the portion of the sidewalk
at issue demonstrate that it is relatively smooth and show only a
slight height differential between the adjacent slabs of
concrete, which were of different shades. Such evidence
satisfied defendant's initial burden of making a prima facie
showing that any alleged defect in the sidewalk was too trivial
-3- 521141
to be actionable (see Gillis v Herzog Supply Co., Inc., 121 AD3d
at 1336; Hardsog v Price Chopper Operating Co., Inc., 99 AD3d at
1131; Castle v Six Flags, Inc., 81 AD3d at 1138; Trionfero v
Vanderhorn, 6 AD3d 903, 904 [2004]).
In opposition to the motion, plaintiff proffered her own
affidavit as well as that of a self-employed contractor who
examined the portion of the sidewalk where plaintiff fell and
opined that it was "maintained in a manner below industry
standards." The contractor's affidavit fails to set forth the
information necessary to determine whether he possesses "'the
requisite skill, training, education, knowledge or experience
from which it can be assumed that the information imparted or the
opinion rendered is reliable'" (Flanger v 2461 Elm Realty Corp.,
123 AD3d 1196, 1197 [2014], quoting Matott v Ward, 48 NY2d 455,
459 [1979]; see Houck v Simoes, 85 AD3d 967, 968 [2011]; Hofmann
v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296, 296 [2000]).
In any event, while finding that the concrete sloped downward
approximately two inches over the 12 linear inches leading up to
the adjacent slab on which plaintiff tripped, the contractor
failed to identify any applicable code, industry standard or
accepted practice that was violated (see Buchholz v Trump 767
Fifth Ave., LLC, 5 NY3d 1, 9 [2005]; Hardsog v Price Chopper
Operating Co., Inc., 99 AD3d at 1132; Guldy v Pyramid Corp., 222
AD2d 815, 816 [1995]). His reference to the Americans With
Disabilities Act is misplaced inasmuch as the Act does not set a
safety standard of care (see Corbett v Adelphia W. N.Y. Holdings,
LLC, 45 AD3d 1293, 1295 [2007]; see generally Lugo v St. Nicholas
Assoc., 18 AD3d 341 [2005]). As plaintiff's submissions failed
to raise a question of fact concerning the trivial nature of the
defect, the complaint was properly dismissed.
Garry, Rose and Lynch, JJ., concur.
-4- 521141
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court