Leem v. 152-24 N., LLC

201 A.D.3d 917

157 N.Y.S.3d 747 (Mem)

Ajja LEEM, plaintiff-respondent,

v.152–24 NORTHERN, LLC, appellant,Dong's Family Cuisine, defendant-Respondent, et al., defendant.

2019–13375

Index No. 715128/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 28, 2021

January 26, 2022

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Michael T. Reagan of counsel), for appellant.

Burns & Harris, New York, N.Y. (Daniel T. Wright and Judith F. Stempler of counsel), for plaintiff-respondent.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Meredith Drucker Nolen and Nicholas Hurzeler of counsel), for defendant-respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant 152–24 Northern, LLC, appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered November 12, 2019. The order denied those branches of the motion of the defendant 152–24 Northern, LLC, which were for summary judgment dismissing the complaint insofar as asserted against it and on its cross claim for contractual indemnification asserted against the defendant Dong's Family Cuisine.

ORDERED that the order is affirmed, with one bill of costs payable to the plaintiff and to the defendant Dong's Family Cuisine.

In September 2017, the plaintiff allegedly sustained personal injuries when she tripped atop a mat covering a concrete ramp/slope as she exited certain premises owned by the defendant 152–24 Northern, LLC (hereinafter Northern), and leased by the defendant Dong's Family Cuisine (hereinafter Dong's). She commenced the instant action against, among others, Northern and Dong's. Thereafter, Northern moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it, contending, inter alia, that the alleged defect was trivial, and on its cross claim for contractual indemnification asserted against Dong's. The Supreme Court denied those branches of Northern's motion. Northern appeals.

In support of that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it, Northern failed to establish, prima facie, that the alleged defect was trivial as a matter of law (see Mscichowski v. 601 BBA, LLC, 134 A.D.3d 996, 997, 22 N.Y.S.3d 506 ). Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). In determining whether a defect is trivial, the court must examine all of the facts presented, including the "width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" ( id. at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]). "A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances,...