Gonzalez v. Club Monaco U.S., LLC

Order, Supreme Court, New York County (Anil C. Singh, J.), entered May 5, 2011, which, in an action for personal injuries sustained when plaintiff tripped and fell while exiting defendant Club Monaco US LLC’s store, denied defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendants failed to establish their entitlement to judgment as a matter of law. The photographs submitted by defendants depict a sizable irregularity on the outermost edge of a top step and fail to show that the defect at issue was trivial as a matter of law (see Abreu v New York City Hous. Auth., 61 AD3d 420 [2009]; Argenio v Metropolitan Transp. Auth., 277 AD2d 165 [2000]). Although it is possible that the defect has no appreciable depth, that cannot be conclusively determined from the photographs, and there is no other evidence of record in that regard (see Rivas v Crotona Estates Hous. Dev. Fund Co., Inc., 74 AD3d 541 [2010]). Concur — Mazzarelli, J.P., Saxe, Moskowitz, Renwick and Freedman, JJ.