Delaney v. Town Sports International

*636The plaintiff allegedly was injured when he fell over a moveable wooden platform which had been placed on the tile floor of a sauna located within the defendants’ premises. The platform was l1/2 inches off the floor with a half-inch lip or overhang, and was located approximately 9V2 inches from the sauna entrance door. The defendants moved for summary judgment contending, inter alia, that the platform did not constitute a defective condition or, alternatively, that any alleged defect was trivial in nature. The Supreme Court denied the motion. We affirm.

“Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case and is generally a question of fact for the jury” (Perez v 655 Montauk, LLC, 81 AD3d 619, 619 [2011]; see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Vani v County of Nassau, 77 AD3d 819 [2010]). Although some defects are trivial and, therefore, not actionable as a matter of law (see Trincere v County of Suffolk, 90 NY2d at 977; Vani v County of Nassau, 77 AD3d at 819), “[i]n determining whether a defect is trivial as a matter of law, a 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 circumstances of the injury” (Perez v 655 Montauk, LLC, 81 AD3d at 619-620; see Trincere v County of Suffolk, 90 NY2d at 977-978; Sabino v 745 64th Realty Assoc., LLC, 77 AD3d 722 [2010]).

The defendants failed to establish their prima facie entitlement to judgment as a matter of law on the basis that the wooden platform did not constitute a defective condition (see Mayo v Santis, 74 AD3d 470 [2010]; Argenio v Metropolitan Transp. Auth., 277 AD2d 165 [2000]; see also Mishaan v Tobias, 32 AD3d 1000 [2006]) or that any defect was trivial in nature (see Trincere v County of Suffolk, 90 NY2d 976 [1997]; DePascale v E&A Constr. Corp., 74 AD3d 1128, 1131 [2010]; Richardson v JAL Diversified Mgt., 73 AD3d 1012 [2010]; Hahn v Wilhelm, 54 AD3d 896 [2008]). Since the movants failed to establish their entitlement to judgment as a matter of law, we need not consider the sufficiency of the opposing papers (see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615 [2008]). Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Mastro, J.P., Florio, Eng and Sgroi, JJ., concur. [Prior Case History: 2011 NY Slip Op 30191(U).]