Stewart v. 7-Eleven, Inc. , 753 N.Y.S.2d 786 ( 2003 )

Appeal from an order of Supreme Court, Erie County (O’Donnell, J.), entered May 6, 2002, which denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when she allegedly twisted her foot in a crack in defendant’s sidewalk. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. “[W]hether a dangerous or defective condition exists on the property of another so as to create liability ‘ “depends on the peculiar facts and circumstances of each case” and is generally a question of fact for the jury’ (Guerrieri v Summa, 193 AD2d 647 [citations omitted])” (Trincere v County of Suffolk, 90 NY2d 976, 977). Upon consideration of the peculiar facts and circumstances of this case, we cannot conclude as a matter of law that the defect in the sidewalk is too trivial to constitute a dangerous or defective condition (see McKenzie v Crossroads Arena, 291 AD2d 860, 861, lv dismissed 98 NY2d 647; see also Zammiello v Senpike Mall Co., 300 AD2d 1124). Present — Green, J.P., Hurl-butt, Burns, Gorski and Hayes, JJ.