MARLON BENNETT, CLAIMANT-APPELLANT,V MEMORANDUM AND ORDERSTATE OF NEW YORK, DEFENDANT-RESPONDENT.(CLAIM NO. 124031.)FRANZBLAU DRATCH, P.C., NEW YORK CITY (BRIAN M. DRATCH OF COUNSEL),FOR CLAIMANT-APPELLANT.BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OFCOUNSEL), FOR DEFENDANT-RESPONDENT.Appeal from an order of the Court of Claims (Renee ForgensiMinarik, J.), entered March 7, 2017. The order granted the motion ofdefendant for summary judgment and dismissed the claim.It is hereby ORDERED that the order so appealed from isunanimously reversed on the law without costs, the motion is denied,and the claim is reinstated.Memorandum: Claimant, a former prison inmate, filed this claimto recover damages for injuries that he sustained when he allegedlyfell as a result of a dangerous condition on a walkway at thecorrectional facility where he had been incarcerated. The Court ofClaimsgranted defendant’s motion for summary judgment dismissing theclaim. That was error.We agree with claimant that the court erred in granting themotion upon concluding that the alleged defect was trivial as a matterof law. In seeking summary judgment on that ground, defendant wasrequired to “make a prima facie showing that the defect [was], underthe circumstances, physically insignificant and that thecharacteristics of the defect or the surrounding circumstances [did]not increase the risks it pose[d]” (Hutchinson v Sheridan Hill HouseCorp., 26 NY3d 66, 79 [2015];seeClauss v Bank of Am., N.A., 151 AD3d1629, 1631 [4th Dept 2017]). “[P]hysically small defects [are]actionable when their surrounding circumstances or intrinsiccharacteristics make them difficult for a pedestrian to see or toidentify as hazards or difficult to traverse safely on foot”(Hutchinson, 26 NY3d at 79;see Langgood v Carrols, LLC, 148 AD3d1734, 1735 [4th Dept 2017]). For example, physically small defectshave been found to be actionable due to the presence of other defectsin the surrounding area (seeHutchinson, 26 NY3d at 78, citingYoung v City of New York, 250 AD2d 383, 384 [1st Dept 1998]). Moreover, theCourt of Appeals has cautioned that “a mechanistic disposition of acase based exclusively on the dimension of the sidewalk defect isunacceptable” (Trincere v County of Suffolk, 90 NY2d 976, 977-978[1997];seeLupa v City of Oswego, 117 AD3d 1418, 1419 [4th Dept2014]).Even assuming, arguendo, that defendant met its burden ofdemonstrating that the defect was trivial as a matter of law, weconclude that claimant raised an issue of fact (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). In claimant’sdeposition testimony, which defendant submitted in support of themotion, claimant testified that he was proceeding along a walkway fromthe housing area to the commissary. It had rained, and a large puddleof water had accumulated on the walkway. Claimant attempted to stepover the flooded portion of the walkway, but his foot came down on aportion of the walkway that was cracked and damaged. The concreteshifted under his foot, causing him to lose his balance, and he fell.In opposition, claimant submitted the deposition testimony of twocorrection officers who testified that inmates are required to use thewalkway and are prohibited from stepping on the grass. One of thosecorrection officers testified that he had to step around the puddle inthe past, but he could not recall whether he avoided it by stepping onthe grass. Viewing the facts and surrounding circumstances in thelight most favorable to claimant (see Valente v Lend Lease [US]Constr. LMB, Inc., 29 NY3d 1104, 1105 [2017]), we conclude that thereis an issue of fact whether the walkway was “difficult to traversesafely on foot” (Hutchinson, 26 NY3d at 79).We also agree with claimant that defendant failed to meet itsburden of establishing that it lacked actual or constructive notice ofthe allegedly dangerous condition (see Rivera v Tops Mkts., LLC, 125AD3d 1504, 1505 [4th Dept 2015];see generallyGordon v AmericanMuseum of Natural History, 67 NY2d 836, 837-838 [1986]), and thus thatthe court erred in granting defendant’s motion on that alternativeground. In support of the motion, defendant submitted the affidavitof a correction officer who had worked at the prison for the prior 27years. The correction officer averred that he was familiar with thewalkway and its condition before claimant fell, that the concrete wasbroken and uneven, and that water can gather there after it rains, buthe did not consider the condition to be dangerous. Furthermore, thecorrection officer averred that he periodically walked the premises tolook for anything in need of repair, and claimant testified at hisdeposition that the walkway was cracked prior to his arrival at theprison and that it flooded every time it rained.Entered: June 8, 2018 Mark W. BennettClerk of the Court
