| Pitt v New York City Tr. Auth. |
| 2017 NY Slip Op 00203 [146 AD3d 826] |
| January 11, 2017 |
| Appellate Division, Second Department |
[*1]
| Eugene Pitt, Appellant, v New York CityTransit Authority, Respondent. |
Beth J. Schlossman (The Feinsilver Law Group, P.C., Brooklyn, NY [DavidFeinsilver and H. Jonathan Rubinstein], of counsel), for appellant.
Lawrence Heisler, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (King, J.), dated March 8, 2011, whichgranted the defendant's oral motion pursuant to CPLR 4401, made at the close of theplaintiff's case, for judgment as a matter of law dismissing the complaint.
Ordered that on the Court's own motion, the notice of appeal is deemed to be anapplication for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
Ordered that the order is reversed, on the law, with costs, the defendant's motionpursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint isdenied, and the matter is remitted to the Supreme Court, Kings County, for a newtrial.
The plaintiff commenced this action against the defendant, the New York CityTransit Authority (hereinafter NYCTA), alleging that he sustained personal injurieswhen he caught his right foot in an alleged defect on a stair at the Nostrand Avenuesubway station as he was descending the staircase. The matter proceeded to trial before ajury. At the trial, the plaintiff testified that the defect was a chip in the edge of the stair,approximately five inches in length, three inches wide, and two inches deep. He did notsee the defect until after he slipped. At the time of the accident, the plaintiff did notrequest medical attention or report the incident because he thought he merely sprained hisankle. That evening, however, he began to feel worse and went to the hospital. Threedays later, he took a photograph of the stair defect.
At the close of plaintiff's case, NYCTA orally moved pursuant to CPLR 4401 forjudgment as a matter of law dismissing the complaint, arguing that the plaintiff failed tomake out a prima facie case of negligence because he did not establish actual orconstructive notice of a dangerous condition, and because the stair defect was trivial. TheSupreme Court granted NYCTA's motion on the ground that the stair defect was trivialand therefore not actionable. The plaintiff appeals.
[*2] "To be awarded judgment as a matter of law pursuantto CPLR 4401, a defendant must show that, upon viewing the evidence in the light mostfavorable to the plaintiff, there is no rational process by which the jury could find for theplaintiff against the moving defendant" (Alicea v Ligouri, 54 AD3d 784, 784-785 [2008], citingLyons v McCauley, 252 AD2d 516, 517 [1998]; see Farrukh v Board ofEduc. of City of N.Y., 227 AD2d 440, 441 [1996]). "The plaintiff's evidence must beaccepted as true, and the plaintiff is entitled to every favorable inference which can bereasonably drawn from the evidence" (Alicea v Ligouri, 54 AD3d at 785).
Generally, the issue of whether a dangerous or defective condition exists depends onthe facts of each case and is a question of fact for the jury (see Trincere v County ofSuffolk, 90 NY2d 976, 977 [1997]; Platkin v County of Nassau, 121 AD3d 879 [2014]; Martyniak v Charleston Enters.,LLC, 118 AD3d 679, 680 [2014]). However, property owners may not be heldliable for trivial defects which, considering "all the specific facts and circumstances ofthe case, not size alone," do not "unreasonably imperil[ ]" the safety of a pedestrian (Hutchinson v Sheridan Hill HouseCorp., 26 NY3d 66, 77-78 [2015] [internal quotation marks omitted]; seeTrincere v County of Suffolk, 90 NY2d at 977; Louima v Jims Realty, LLC, 125 AD3d 943, 944 [2015];Platkin v County of Nassau, 121 AD3d at 879). In other words, physically smalldefects are actionable "when their surrounding circumstances or intrinsic characteristicsmake them difficult for a pedestrian to see or to identify as hazards or difficult to traversesafely on foot" (Hutchinson v Sheridan Hill House Corp., 26 NY3d at 79). Thereis no "minimal dimension test or per se rule" that the condition must be of a certainheight or depth to be actionable (Trincere v County of Suffolk, 90 NY2d at 977[internal quotation marks omitted]; see Green v New York City Hous. Auth., 137 AD3d 748[2016]; Martyniak v Charleston Enters., LLC, 118 AD3d at 680). In determiningwhether a defect is trivial as a matter of law, the court must examine all of the factspresented, "including the width, depth, elevation, irregularity and appearance of thedefect along with the 'time, place and circumstance' of the injury" (Trincere v Countyof Suffolk, 90 NY2d at 978, quoting Caldwell v Village of Is. Park, 304 NY268, 274 [1952]).
"Photographs which fairly and accurately represent the accident site may be used toestablish that a defect is trivial and not actionable" (Green v New York City Hous.Auth., 137 AD3d at 749; see Schenpanski v Promise Deli, Inc., 88 AD3d 982, 984[2011]; see also Hutchinson v Sheridan Hill House Corp., 26 NY3d at 82-83). InHutchinson, the Court of Appeals determined that the defendants in one of thecases at issue, who had moved for summary judgment dismissing the complaint, failed tomake a prima facie showing that a defect was trivial where photographs of the defectwere "indistinct" and the defendants presented no evidence regarding the measurementsof the defect (Hutchinson v Sheridan Hill House Corp., 26 NY3d at 82-83).
Here, NYCTA failed to show that there was no rational process by which the jurycould have found in favor of the plaintiff and against it (see Meneses v Riggs, 138AD3d 700, 701 [2016]). Accepting the plaintiff's evidence as true, and giving himevery favorable inference which can be reasonably drawn from that evidence, NYCTAfailed to establish that the defect was trivial as a matter of law. The plaintiff testified thatthe defect was approximately five inches long, three inches wide, and two inches deep.NYCTA relied on the plaintiff's photograph of the defect and the testimony of hiswitness, a former NYCTA employee, who testified that the photograph showed "minorwear" to the stair. The dimensions of the defect cannot be ascertained from that oneindistinct photograph (see Hutchinson v Sheridan Hill House Corp., 26 NY3d at82-83). The location of the chip on the walking surface of a stair also figures into theanalysis of whether the defect was trivial (see id. at 81-82). Accordingly, underthe circumstances, a rational jury could have concluded that the defect was nottrivial.
Moreover, contrary to NYCTA's contention, it failed to establish that no rational jurycould have found that it had notice of the defect. An owner of realty owes a duty tomaintain the property in a reasonably safe condition (see Basso v Miller, 40NY2d 233, 241 [1976]), and a plaintiff who has fallen as a result of a defect in pavementor stairs must prove that the property owner caused the defect or had either actual orconstructive notice of the defect and a reasonable time to fix it (see Farrar vTeicholz, 173 AD2d 674, 676 [1991]). To constitute constructive notice, a defectmust be visible and apparent, and it must exist for a sufficient length of time prior to theaccident to permit a defendant's employees to discover and remedy it (see Gordon vAmerican Museum of Natural [*3]History, 67 NY2d836, 837-838 [1986]; Negri v Stop & Shop, 65 NY2d 625, 626 [1985]).
Photographs that accurately depict the area in which a plaintiff fell may be adequatefor a trier of fact to infer that a defendant had constructive notice of the alleged defect(see Batton v Elghanayan, 43 NY2d 898, 899 [1978]; Zavaro v WestburyProp. Inv. Co., 244 AD2d 547, 548 [1997], Farrar v Teicholz, 173 AD2d at676 [1997]; Ferlito v Great S. Bay Assoc., 140 AD2d 408, 409 [1988]). Here, theplaintiff's evidence created issues of fact as to whether NYCTA had constructive noticeof the defect, which should have been submitted to and evaluated by the jury (seeBatton v Elghanayan, 43 NY2d at 899; Zavaro v Westbury Prop. Inv. Co.,244 AD2d at 548; Ferlito v Great S. Bay Assoc., 140 AD2d at 409).
Accordingly, the Supreme Court erred in granting NYCTA's motion pursuant toCPLR 4401 for judgment as a matter of law dismissing the complaint, and a new trial iswarranted. Rivera, J.P., Roman, Cohen and Miller, JJ., concur.