Hutchinson v. Sheridan Hill House Corp.
| Decision Date | 20 October 2015 |
| Citation | 19 N.Y.S.3d 802,2015 N.Y. Slip Op. 07578,26 N.Y.3d 66,41 N.E.3d 766 |
| Parties | Leonard HUTCHINSON, Appellant, v. SHERIDAN HILL HOUSE CORP., Respondent. Matvey Zelichenko, Appellant, v. 301 Oriental Boulevard, LLC, Respondent. Maureen Adler, Appellant, v. QPI–VIII LLC, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaacof counsel) and Getz & Braverman, P.C. (Michael Bravermanof counsel), for appellant in the first above-entitled action.
Kaufman Dolowich & Voluck, LLP, Hackensack, New Jersey (Kevin J. O'Donnellof counsel), for respondent in the first above-entitled action.
Wingate, Russotti, Shapiro & Halperin, LLP, New York City (David M. Schwarz of counsel), for appellant in the second above-entitled action.
Gannon, Rosenfarb, Balletti & Drossman, New York City (Lisa L. Gokhulsinghof counsel), for respondent in the second above-entitled action.
Margaret G. Klein, Defense Association of New York, Inc. (Andrew Zajac, Dawn C. DeSimone, Rona L. Plattand Jonathan T. Uejioof counsel), for Defense Association of New York, Inc., amicus curiae, in the second above-entitled action.
Law Offices of Vel Belushin, P.C., Brooklyn (Georgette Hamboussiof counsel), for appellant in the third above-entitled action.
McGaw, Alventosa & Zajac, Jericho (Joseph Horowitzof counsel), for respondents in the third above-entitled action.
These cases teach that it is usually more difficult to define what is trivial than what is significant. The common factual and procedural thread among the three appeals before us is that an individual tripped on a defect in a sidewalk or stairway, and was injured, but was foreclosed from going to trial on the ground that the defect was characterized as too trivial to be actionable. We hold that the Appellate Division erred in dismissing the complaint in two of the three cases.
On April 23, 2009, plaintiff Leonard Hutchinson was walking on a concrete sidewalk in the Bronx when his right foot “caught” on a metal object protruding from the sidewalk and he fell, sustaining injuries. Hutchinson commenced this personal injury action against Sheridan Hill House Corp. The sidewalk where Hutchinson tripped abuts a building owned by Sheridan, which is responsible for maintaining the sidewalk in a reasonably safe condition under Administrative Code of the City of New York § 7–210(a).
Discovery ensued. Hutchinson was deposed, along with a housing development director associated with Sheridan and two of its porters. Testimony was given that the sidewalk had been replaced in the summer of 2007. For his part, Hutchinson described the metal object as being “screwed on in the concrete” and gave rough estimates of its dimensions.
An employee of Sheridan's counsel visited the sidewalk in December 2010 and photographed and measured the metal object. He concluded that the object, cylindrical in shape, projected “between one eighth of an inch ... and one quarter of an inch” above the sidewalk and was “approximately five eighths of an inch” in diameter.1
Sheridan moved for summary judgment dismissing the complaint, asserting that the defect was trivial in nature and hence nonactionable and that Sheridan did not create, or have actual or constructive notice of, the defect. Sheridan submitted, among other documents, an affidavit of the law firm employee who had photographed the metal protrusion, giving his measurements; the photographs; the deposition testimony; and the engineer's report. In response, Hutchinson contended that there are issues of fact regarding whether the metal object created a hazard in the nature of a trap or snare and whether Sheridan had constructive notice of its existence.
Supreme Court granted summary judgment in favor of Sheridan on the ground that it lacked notice of the defect (2012 N.Y. Slip Op. 33804[U] [2012]).2The Appellate Division affirmed, holding that Sheridan had demonstrated that it did not have notice of the defect and, in addition, that the metal object's “minor height differential alone is insufficient to establish the existence of a dangerous or defective condition” (110 A.D.3d 552, 553, 973 N.Y.S.2d 178 [1st Dept.2013]).
Two Justices dissented, reminding the majority that “ ‘there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable’ ” (id.at 554, 973 N.Y.S.2d 178[Acosta, J.P., and Saxe, J., dissenting], quoting Trincere v. County of Suffolk,90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997]). Moreover, the dissenters would have held that “an issue of fact remains as to whether the protruding piece of metal may be characterized as a trap or a snare such as could, without warning, snag a passerby's shoe” (110 A.D.3d at 556, 973 N.Y.S.2d 178[Acosta, J.P., and Saxe, J., dissenting] ).
Hutchinson appeals pursuant to CPLR 5601(a). We affirm.
On May 2, 2010, plaintiff Matvey Zelichenko fell while walking down a staircase in the lobby of a residential building in Brooklyn he was visiting for the first time. The staircase has five risers or vertical elements. It has four step treads, made of terrazzo, 12 inches in horizontal depth, each with a one-inch nosing that projects over the riser below. There are handrails on each side, and Zelichenko made use of one.
On the second step tread from the bottom, Zelichenko's right leg “got caught” when he stepped on a part of the nosing where there was a missing piece or “chip.” His leg twisted and he fell, with resulting injuries. Zelichenko commenced this personal injury action against 301 Oriental Boulevard, LLC, the owner of the building.
During discovery, Zelichenko and the superintendent of the building gave deposition testimony. Zelichenko identified several photographs as fairly and accurately depicting the stairway and, in particular, the area of the missing “chip.” In one such photograph, a shoe-clad foot is shown on the step tread in question, next to an indentation in the nosing of the step; the toe of the shoe projects over the nosing.
301 Oriental moved for summary judgment dismissing the complaint, contending that the alleged defect in the step was trivial and nonactionable as a matter of law and that it was not on notice of the defect. 301 Oriental relied on an affidavit of an engineering consultant, Jeffrey J. Schwalje, who had inspected, measured, and photographed the staircase in May 2011; the photographs; and the deposition testimony.
Schwalje measured the dimensions of the missing “chip” as 3.25 inches in width and one-half inch in depth. Schwalje stated that the chipped step tread in question He further opined that “[a] person descending the stairway would not bear any weight on the chipped space or any other part of the step edge in the subject step tread unless his/her foot completely overstepped the tread.”
Zelichenko opposed the motion, relying on the photographs of the staircase and an affidavit of another engineer, Stuart K. Sokoloff. With regard to the size of the “chip,” Sokoloff agreed with Schwalje's assessment of the width of the “chip” but, based on the photographs, he concluded that the depth of the missing area was one inch in places.
Sokoloff relied on a monograph entitled “The Staircase—Studies of Hazards, Falls and Safer Design” by architecture professor John Templer. According to Sokoloff, Professor Templer, after explaining the physical processes whereby a human being walks down stairs, “states that one of the factors that may cause a fall is a broken tread” on a stairway, because “[w]hen our gait on stairs is disrupted or altered we can lose our balance or stumble especially when a defect is unsuspected, unknown, unanticipated and unexpected.” Sokoloff added that “[i]t is necessary that all stair tread[s] be uniform without missing sections to support a person descending a stair in order for [the] person to maintain ... balance when negotiating the steps.”
Sokoloff criticized Schwalje's assertion that there was more than enough space behind the chip for an individual to place his or her foot. Citing Professor Templer, Sokoloff opined that “the foot can make contact with the end of the nosing.” Sokoloff explained the process as follows:
Supreme Court denied 301 Oriental's motion, ruling that issues of fact existed as to actual or constructive notice and as to whether the alleged defect was trivial as a matter of law. The Appellate Division reversed Supreme Court's order and granted 301 Oriental's motion.
We granted Zelichenko leave to appeal (24 N.Y.3d 904, 2014 WL 4548565 [2014]) and now reverse.
On March 30, 2010, plaintiff Maureen Adler was injured in a fall on the...
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