Pitt v. N.Y.C. Transit Auth.

• Decision Date: 11 January 2017
• Citation: 44 N.Y.S.3d 525,146 A.D.3d 826,2017 N.Y. Slip Op. 00203
• Parties: Eugene PITT, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, respondent.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 826
44 N.Y.S.3d 525
2017 N.Y. Slip Op. 00203

Eugene PITT, appellant,
v.
NEW YORK CITY TRANSIT AUTHORITY, respondent.

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

Jan. 11, 2017.

44 N.Y.S.3d 527

Beth J. Schlossman (The Feinsilver Law Group, P.C., Brooklyn, NY [David Feinsilver and H. Jonathan Rubinstein ], of counsel), for appellant.

Lawrence Heisler, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.

146 A.D.3d 826

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 CPLR 4401, made at the close of the plaintiff'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 an application 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 motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint is denied, and the matter is remitted to the Supreme Court, Kings County, for a new trial.

The plaintiff commenced this action against the defendant, the New York City Transit Authority (hereinafter NYCTA), alleging that he sustained personal injuries when he caught his right foot 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, approximately five inches in length, three inches wide, and two

146 A.D.3d 827

inches deep. He did not see the defect until after he slipped. At the time of the accident, the plaintiff did not request medical attention or report the incident because he thought he merely sprained his ankle. That evening, however, he began to feel worse and went to the hospital. Three days later, he took a photograph of the stair defect.

At the close of plaintiff's case, NYCTA orally moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, arguing that the plaintiff failed to make out a prima facie case of negligence because he did not establish actual or constructive notice of a dangerous condition, and because the stair defect was trivial. The Supreme Court granted NYCTA's motion on the ground that the stair defect was trivial and therefore not actionable. The plaintiff appeals.

"To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational process by which the jury could find for the plaintiff against the moving defendant" (Alicea v. Ligouri, 54 A.D.3d 784, 784–785, 864 N.Y.S.2d 462, citing Lyons v. McCauley, 252 A.D.2d 516, 517, 675 N.Y.S.2d 375 ; see Farrukh v. Board of Educ. of City of N.Y., 227 A.D.2d 440, 441, 643 N.Y.S.2d 118 ). "The plaintiff's evidence must be accepted as true, and the plaintiff is entitled to every favorable inference which can be

44 N.Y.S.3d 528

reasonably drawn from the evidence" (Alicea v. Ligouri, 54 A.D.3d at 785, 864 N.Y.S.2d 462 ).

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Platkin v. County of Nassau, 121 A.D.3d 879, 994 N.Y.S.2d 636 ; Martyniak v. Charleston Enters., LLC, 118 A.D.3d 679, 680, 987 N.Y.S.2d 413 ). 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 N.Y.3d 66, 77–78, 19 N.Y.S.3d 802, 41 N.E.3d 766 [internal quotation marks omitted]; see Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Louima v. Jims Realty, LLC, 125 A.D.3d 943, 944, 5 N.Y.S.3d 144 ; Platkin v. County of Nassau, 121 A.D.3d at 879, 994 N.Y.S.2d 636 ). 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 N.Y.3d at 79, 19 N.Y.S.3d 802, 41 N.E.3d 766 ). There is no "minimal dimension test or per se rule" that the condition must be of a certain height or depth to be actionable (Trincere v.

146 A.D.3d 828

County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d...