Donati v. Tommy's, LLC
Opinion of the Court
Ordered that the appeal from the order entered November 15, 2005 is dismissed, as that order was superseded by the order entered March 3, 2006, made upon reargument; and it is further,
Ordered that the order entered March 3, 2006 is reversed insofar as appealed from, on the law, upon reargument, the order entered November 15, 2005, is vacated, and the motion of the defendant Tommy’s, LLC, doing business as Morningside Pub, for summary judgment dismissing the complaint insofar as asserted against it is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff allegedly tripped and fell over a hose that lay across less than half the doorway of the bar owned by the defendant Tommy’s, LLC, doing business as Morningside Pub (hereinafter the Pub). The hose was attached to an air conditioner located over the front doorway, and ran down the front of the Pub to where it lay in the walkway.
The plaintiff commenced the instant action against, among others, the Pub, alleging negligence. The Pub moved for summary judgment dismissing the complaint insofar as asserted against it, contending that the alleged condition was too trivial to be actionable. The Supreme Court determined that the Pub satisfied its burden of showing that the location of the hose in less than half the walkway was a trivial defect, and did not have the characteristics of a trap or snare (see Trincere v County of Suffolk, 90 NY2d 976 [1997]). The court further found that, in opposition, the plaintiff failed to raise a triable issue of fact. We disagree.
Under the circumstances of this case, a triable issue of fact exists as to whether the alleged condition was too trivial to be actionable (see Trincere v County of Suffolk, supra; Mishaan v Tobias, 32 AD3d 1000 [2006]; Herring v Lefrak Org., 32 AD3d 900 [2006]; Maxson v Brentwood Union Free School Dist., 31 AD3d 506, 507 [2006]; Fairchild v J. Crew Group, Inc., 21 AD3d
Case-law data current through December 31, 2025. Source: CourtListener bulk data.