K. A. v. City of N.Y.

• Decision Date: 18 November 2020
• Docket Number: 2018–04480,Index No. 6468/13
• Citation: K. A. v. City of N.Y., 188 A.D.3d 964, 134 N.Y.S.3d 423 (N.Y. App. Div. 2020)
• Parties: K. A., etc., et al., Appellants, v. CITY OF NEW YORK, et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 964

134 N.Y.S.3d 423

K. A., etc., et al., Appellants,

v.CITY OF NEW YORK, et al., Respondents, et al., Defendant.

2018–04480

Index No. 6468/13

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

Argued—September 29, 2020

November 18, 2020

Sacco & Fillas LLP, Astoria, N.Y. (James R. Baez of counsel), for appellants.

Ahmuty, Demers & McManus, Albertson, N.Y. (Frank J. Wenick, Nicholas M. Cardascia, and Glenn A. Kaminska of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered January 22, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendants City of New York, Department of Education, and Samuel Field YM & YWHA, Inc., which was for summary judgment dismissing the amended complaint insofar as asserted against the defendants Department of Education and Samuel Field YM & YWHA, Inc.

ORDERED that the order is affirmed insofar as appealed from, with costs.

While a seventh-grade student at P.S. 266 in Queens, the infant plaintiff allegedly was injured when he tripped and fell due to a crack in the concrete surface of the schoolyard. At the time of the accident, the infant plaintiff was running a sprint in an after-school program organized by an employee of the defendant Samuel Field YM & YWHA, Inc. (hereinafter the Y). The infant plaintiff, and his father suing derivatively commenced this personal injury action against the defendants City of New York and Department of Education (hereinafter the DOE), and another defendant. Thereafter, the plaintiffs served an amended complaint adding the Y as a party defendant. Following joinder of issue and discovery, the City, the DOE, and the Y (hereinafter collectively the defendants) moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against them. By order entered January 22, 2018, the Supreme Court granted that branch of the motion which was for summary judgment dismissing the amended complaint insofar as asserted against the City on the ground that the City did not operate, maintain, or control the school where the accident happened. The court also granted that branch of the motion which was for summary judgment dismissing the amended complaint insofar as asserted against the DOE and the Y on the grounds that the defect was trivial in nature and that the infant plaintiff assumed the risk of injury by running a sprint on the concrete schoolyard. The plaintiffs appeal.

A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Baird v. Four Winds Hosp., 140 A.D.3d 810, 811, 33 N.Y.S.3d 389 ; Mazza v. Our Lady of Perpetual Help R.C. Church, 134 A.D.3d 1073, 1074, 24 N.Y.S.3d 98 ). In determining whether a defect is trivial, the court must examine all of the facts presented, including the "width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" ( Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 ).

Here, the defendants established, prima facie, that the alleged defective condition was trivial as a matter of law and therefore nonactionable (see Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Speredowich v. Long Is. R.R. Co., 164 A.D.3d 855, 82 N.Y.S.3d 509 ; Losito v. JP Morgan Chase & Co., 72 A.D.3d 1033, 899 N.Y.S.2d 375 ). The defendants' expert inspected the crack and determined that it was "from 1/8 of an inch to 7/16 of an inch in width," and the pavement "on each side of the crack[ ] ... contained no vertical height differential." Further, the infant plaintiff's General Municipal Law § 50–h hearing and deposition testimony established that the accident occurred during daylight hours on a clear day with nothing obstructing his view.

In opposition to the defendants' prima facie showing that the defect was trivial, the plaintiffs failed to...