SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
734
CA 11-02540
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.
BARBARA GERMAIN, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
KOHL’S CORPORATION, KOHL’S DEPARTMENT
STORES, INC., AND KOHL’S NEW YORK D.C., INC.,
ALL DOING BUSINESS AS KOHL’S DEPARTMENT STORES,
DEFENDANTS-RESPONDENTS.
THE ROTHSCHILD LAW FIRM, P.C., EAST SYRACUSE (MARTIN J. ROTHSCHILD OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA, LLP, SYRACUSE (CORY A. DECRESENZA OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered May 17, 2011 in a personal injury action. The
order granted the motion of defendants for summary judgment and
dismissed the complaint.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she allegedly tripped and fell on
carpeting at defendants’ store. We conclude that Supreme Court
properly granted defendants’ motion for summary judgment dismissing
the complaint (see generally Zuckerman v City of New York, 49 NY2d
557, 562). The allegedly defective condition was created by two rugs
inside an entrance to defendants’ store. The first rug was permanent,
inset into the floor and flush with the tile surrounding it. The
second rug was seasonal, approximately one-quarter-inch thick, and it
was placed on top of the tile floor and adjacent to the permanent rug
during inclement weather. The permanent and seasonal rugs were duct
taped together at the edge where they met.
Plaintiff testified at her deposition that she tripped and fell
on a portion of the duct tape covering the “raised” area or “hump”
created by the adjoining rugs. Although plaintiff did not testify
with respect to the extent of the height differential between the
rugs, plaintiff’s friend, who was with plaintiff at the time of the
accident and who felt the raised area under the duct tape immediately
thereafter, estimated at her deposition that the height differential
was one-half of an inch. Defendants’ expert engineer measured that
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CA 11-02540
the height differential between the rugs was between five-sixteenths
and three-eighths of an inch. Although plaintiff testified that it
felt as though her foot got caught in the duct tape, which, according
to plaintiff, was “raised a little” and “wrinkled,” plaintiff did not
observe the tape before she fell, and she could not recall whether the
tape was “pulled up” from the rugs thereafter. Plaintiff’s friend
testified that, after the accident, the tape was “still secured to the
carpet,” was not “raised up or bubbled up” and was not “lifted up or
pulled up in any way.” The accident occurred on a sunny day, and
plaintiff testified that there were no other customers in the vicinity
and that nothing blocked her view of the area in which she was
walking.
“After examining the photograph[] depicting the width, depth and
irregularity of the defect in the [carpeting], and in view of the
time, place and circumstances of plaintiff’s injury, we conclude that
defendants established as a matter of law that the defect is too
trivial to be actionable” (Sharpe v Ulrich Dev. Co., LLC, 52 AD3d
1319, 1320; see e.g. Taussig v Luxury Cars of Smithtown, Inc., 31 AD3d
533, 534; Trionfero v Vanderhorn, 6 AD3d 903, 903-904; cf. Seivert v
Kingpin Enters., Inc., 55 AD3d 1406, 1407). We further conclude that
plaintiff “failed to raise a triable issue of fact whether the alleged
defect has the characteristics of a trap, snare or nuisance”
(Gigliotti v St. Stanislaus Kostka R.C. Church, 261 AD2d 951, 952; see
Trionfero, 6 AD3d at 904; Maloid v New York State Elec. & Gas Corp.,
257 AD2d 712, 713; cf. McKenzie v Crossroads Arena, 291 AD2d 860, 861,
lv dismissed 98 NY2d 647).
Entered: June 8, 2012 Frances E. Cafarell
Clerk of the Court