Pitt v. New York City Transit AuthorityPitt v. New York City Transit Authority
Eugene Pitt, Appellant, v New York City Transit Authority, Respondent. [44 NYS3d 525]
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (King, J.), dated March 8, 2011, which granted the defendant‘s oral motion pursuant to
Ordered that on the Court‘s own motion, the notiсe of appeal is deemed to be an application for leave to appeal, and leave to аppeal is granted (see
Ordered that the order is reversed, on the law, with costs, the defendant‘s motion pursuant to
The plaintiff commenсed this action against the defendant, the New York City Transit Authority (hereinafter NYCTA), alleging that he sustained personal injuries when he caught his right fоot in an alleged defect on a stair at the Nostrand Avenue subway station as he was descending the staircase. The matter proceeded to trial before a jury. At the trial, the plaintiff testified that the defect was a chip in the edge of the stair, aрproximately five inches in length, three inches wide, and two
At the close of plaintiff‘s case, NYCTA orally moved pursuant to
“To be awarded judgment as a matter of law pursuant to
Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a questiоn of fact for the jury (see Trincere v County of Suffolk, 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 held liable for trivial defects which, considering “all the specific facts and circumstances of the case, not size alone,” do not “unreasonably imperil[]” the safety of a pedestrian (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 77-78 [2015] [internal quotation marks omitted]; see Trincere 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 small defects are actionable “when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot” (Hutchinson v Sheridan Hill House Corp., 26 NY3d at 79). There is no “minimal dimеnsion test or per se rule” that the condition must be of a certain height 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 determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity аnd appearance of the defect along with the ‘time, place and circumstance’ of the injury” (Trincere v County of Suffolk, 90 NY2d at 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]).
“Photographs which fаirly and accurately represent the accident site may be used to establish that a defect is trivial and not actionablе” (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). In Hutchinson, the Court of Appeals determined that the defendants in one of the cases at issue, who had moved for summary judgment dismissing the comрlaint, failed to make a prima facie showing that a defect was trivial where photographs of the defect were “indistinct” and the defendants presented no evidence regarding the measurements of 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 jury could have found in favor of the plaintiff and against it (see Meneses v Riggs, 138 AD3d 700, 701 [2016]). Accepting the plaintiff‘s еvidence as true, and giving him every favorable inference which can be reasonably drawn from that evidence, NYCTA failed to establish that the defect was trivial as a matter of law. The plaintiff testified that the 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 his witness, a former NYCTA employee, who testified that the photograph showed “minor wear” to the stair. The dimensions of the defect cаnnot be ascertained from that one indistinct photograph (see Hutchinson v Sheridan Hill House Corp., 26 NY3d at 82-83). The location of the chip on the walking surface of a stair also figures into the analysis of whether the defect was trivial (see id. at 81-82). Accordingly, under the circumstances, a rational jury could have concluded that the defect was not trivial.
Moreover, contrary to NYCTA‘s contention, it failed to establish that no rational jury could have found that it had notice of the defect. An owner of realty owes a duty to maintain the property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233, 241 [1976]), and a plaintiff who has fallen as a
Photographs that acсurately depict the area in which a plaintiff fell may be adequate for a trier of fact to infer that a defendant had сonstructive notice of the alleged defect (see Batton v Elghanayan, 43 NY2d 898, 899 [1978]; Zavaro v Westbury Prop. Inv. Co., 244 AD2d 547, 548 [1997], Farrar v Teicholz, 173 AD2d at 676 [1997]; Ferlito v Great S. Bay Assoc., 140 AD2d 408, 409 [1988]). Here, the plaintiff‘s evidence created issues of fact as to whether NYCTA had constructive notice of the defect, which should have been submitted to and evaluated by the jury (see Batton 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 to
Rivera, J.P., Roman, Cohen and Miller, JJ., concur.