Atkinson v. Key Real Estate Assocs., LLC

• Decision Date: 27 September 2016
• Citation: 37 N.Y.S.3d 797,142 A.D.3d 871,2016 N.Y. Slip Op. 06160
• Parties: Jeanne ATKINSON, Plaintiff–Respondent, v. KEY REAL ESTATE ASSOCIATES, LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 871

37 N.Y.S.3d 797

2016 N.Y. Slip Op. 06160

Jeanne ATKINSON, Plaintiff–Respondent,

v.KEY REAL ESTATE ASSOCIATES, LLC, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Sept. 27, 2016.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants.

Philip J. Dinhofer, LLC, Rockville Centre (Philip J. Dinhofer of counsel), for respondent.

FRIEDMAN, J.P., ANDRIAS, RICHTER, GISCHE, KAHN, JJ.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered April 20, 2016, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss so much of the complaint as is based on the height differential between a marble step and the bull-nosing on the front of that step, and otherwise affirmed, without costs.

The parties agree that the height differential between the marble step and the bull-nosing on which plaintiff caught her heel, causing her to fall, was one-eighth to one-quarter of an inch. This defect, as a matter of law, did not constitute a trap or nuisance, nor were the intrinsic characteristics or the surrounding circumstances such that they magnified the danger posed by this otherwise insignificant defect (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77–78, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015]

; Trincere v. County of Suffolk, 90 N.Y.2d 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ). Thus, this defect was trivial as a matter of law, and therefore nonactionable.

As defendants concede in their reply brief, issues of fact exist as to whether defendants' failure to install handrails, pursuant to Administrative Code of the City of New York § 27–375(f)(1), was a proximate cause of plaintiff's injuries.