| Sabino v 745 64th Realty Assoc., LLC |
| 2010 NY Slip Op 07322 [77 AD3d 722] |
| October 12, 2010 |
| Appellate Division, Second Department |
| Vera Sabino, Appellant-Respondent, v 745 64th RealtyAssociates, LLC, Respondent-Appellant. |
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In an action to recover damages for personal injuries, the plaintiff appeals from so much of an orderof the Supreme Court, Kings County (Jacobson, J.), dated March 11, 2009, as granted those branchesof the defendant's motion pursuant to CPLR 4404 (a) which were to set aside a jury verdict on theissue of liability as contrary to the weight of the evidence and for a new trial, and denied, as academic,those branches of her cross motion pursuant to CPLR 4404 (a) which were to set aside the jury verdicton the issue of damages to the extent that it awarded her $0 for certain future damages and for a newtrial solely on the issue of those future damages, and the defendant cross-appeals from so much of thesame order as, in effect, denied that branch of its motion pursuant to CPLR 4404 (a) which was to setaside the jury verdict and for judgment as a matter of law in its favor dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, that branch of thedefendant's motion pursuant to CPLR 4404 (a) which was to set aside the jury verdict and forjudgment as a matter of law in its favor dismissing the complaint is granted, and that branch of thedefendant's motion pursuant to CPLR 4404 (a) which was to set aside the jury verdict on the issue ofliability as contrary to the weight of the evidence and for a new trial is denied as academic; and it isfurther,
Ordered that one bill of costs is awarded to the defendant.
"[W]hether a dangerous or defective condition exists on the property of another so as to createliability depends on the peculiar facts and circumstances of each case and is generally a question of factfor the jury" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal quotationmarks omitted]). However, not every question involving an alleged defect should be submitted to a juryand a court may find, as a matter of law, that a defect was so trivial as to not be actionable(id.).[*2]
A property owner may not be held liable for trivial defects, notconstituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, ortrip (see Richardson v JAL DiversifiedMgt., 73 AD3d 1012 [2010]; Aguayo v New York City Hous. Auth., 71 AD3d 926 [2010]; Copley v Town of Riverhead, 70 AD3d623, 624 [2010]; Joseph v Villages atHuntington Home Owners Assn., Inc., 39 AD3d 481, 482 [2007]; Outlaw v Citibank, N.A., 35 AD3d564, 564-565 [2006]; Guerrieri v Summa, 193 AD2d 647 [1993]). "In determiningwhether a defect is trivial, the 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 theinjury" (Ryan v KRT Prop. Holdings,LLC, 45 AD3d 663, 665 [2007] [internal quotation marks omitted]).
Here, reviewing the testimony and other evidence adduced at trial, we find that, as a matter of law,the alleged defect was not actionable, as it was trivial and did not possess the characteristics of a trapor nuisance. The evidence at trial revealed that, while at work, the plaintiff fell to the floor after her chairallegedly rolled backwards by itself when she got up to get something from a shelf above her desk. Theplaintiff testified at trial that the chair rolled away on its own due to a slope in the floor. The plaintiff'sforensic engineering expert testified that the slope in the floor measured one degree and was not visibleto the naked eye. A slope of one degree is too trivial to be actionable, especially in light of the fact thatthe accident took place during daylight working hours in an area with which the plaintiff was admittedlyfamiliar (id.). Rivera, J.P., Dickerson, Eng and Austin, JJ., concur.