Guerriero v Jand

Guerriero v Jand 2008 NY Slip Op 09922 [57 AD3d 365] December 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Joann Guerriero, Appellant,
v
Ferdinand Jand et al., Respondents.

—[*1] Eppinger, Rengold & Korder, Larchmont (Mitchell L. Korder of counsel), for appellant.

Keane & Beane, P.C., White Plains (Eric L. Gordon of counsel), for Jands' respondents.

Gannon Rosenfarb & Moskowitz, New York (Nicholas Gisonda of counsel), for Tom Pierce Management, LLC., respondent.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about October 12, 2007, which, insofar as appealed from as limited by the briefs, in an action for personal injuries sustained as the result of a trip and fall on an interior staircase, granted the Jand defendants' motion for summary judgment dismissing the complaint as against them, and granted summary judgment dismissing the complaint as against defendant Tom Pierce Management (TPM) pursuant to CPLR 3212 (b), unanimously affirmed, without costs.

Plaintiff fell on a marble step that contained a hairline crack and allegedly a small v-shaped chip, and her deposition testimony showed that the accident occurred in a lighted area that she traveled several times a day. The Jand defendants established a prima facie entitlement to summary judgment since the alleged defect, which was six inches long and one sixty-fourth of an inch wide, was trivial, did not constitute a trap or nuisance, and was not actionable as a matter of law (see Trincere v County of Suffolk, 90 NY2d 976 [1997]; Martin v Lafayette Morrison Hous. Corp., 31 AD3d 300 [2006]). Plaintiff failed to raise a triable issue of fact in opposition.

Although TPM's motion for summary judgment was untimely, in light of the evidence showing the trivial nature of the defect, the court properly granted summary judgment to TPM [*2]pursuant to CPLR 3212 (b) (see Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280, 281 [2006]). Concur—Mazzarelli, J.P., Gonzalez, Catterson, McGuire and Acosta, JJ.