| Acevedo v New York City Tr. Auth. |
| 2012 NY Slip Op 05377 [97 AD3d 515] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Angel Acevedo, Appellant, v New York City TransitAuthority, Respondent. |
—[*1] Steve S. Efron, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Ash, J.), dated July 14, 2011, which granted the defendant'smotion, in effect, for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion, ineffect, for summary judgment dismissing the complaint is denied.
The plaintiff allegedly tripped and fell over a wooden board at the edge of a subway platformas he attempted to enter a train during rush hour. The defendant, the New York City TransitAuthority, had placed the wooden board, which was not flush with the surrounding platform, atthe edge of the platform as a temporary measure to cover a defect in the platform. The plaintiffalleged that, when he arrived at the platform, the train had already pulled into the station andthere were people exiting and entering the train. The wooden board was located near one of thetrain doors. The plaintiff commenced this action against the defendant, and the defendant moved,in effect, for summary judgment dismissing the complaint. The Supreme Court granted themotion. The plaintiff appeals, and we reverse.
"To impose liability upon a defendant in a trip-and-fall action, there must be evidence that adangerous or defective condition existed, and that the defendant either created the condition orhad actual or constructive notice of it" (Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629, 629[2009]). Whether a dangerous or defective condition exists on the property so as to createliability depends on the particular circumstances of each case and is generally a question of factfor the jury (see Surujnaraine v ValleyStream Cent. High School Dist., 88 AD3d 866 [2011]; Katz v Westchester County HealthcareCorp., 82 AD3d 712 [2011]; Stoppeli v Yacenda, 78 AD3d 815 [2010]; Villano v Strathmore Terrace HomeownersAssn., Inc., 76 AD3d 1061 [2010]). "A condition that is ordinarily apparent to a personmaking reasonable use of his or her senses may be rendered a trap for the unwary where thecondition is obscured or the plaintiff is distracted" (Shah v Mercy Med. Ctr., 71 AD3d 1120, 1120 [2010]; see Beck v Bethpage Union Free SchoolDist., 82 AD3d 1026 [2011]; Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008, 1009 [2008]).
Here, the defendant's own submissions in support of its motion demonstrated the [*2]existence of a triable issue of fact as to whether, under thecircumstances, the wooden board that it placed on the platform constituted a dangerouscondition. Accordingly, the Supreme Court should have denied the defendant's motion, in effect,for summary judgment dismissing the complaint, without regard to the sufficiency of theplaintiff's papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851 [1985]; Cassone v State ofNew York, 85 AD3d 837 [2011]; Mauriello v Port Auth. of N.Y. & N.J., 8 AD3d 200 [2004]).Florio, J.P., Balkin, Hall and Miller, JJ., concur.