Opinion
Index No. 3719/2013
12-27-2023
THERESE DABAS, Plaintiff, v. DELORIS WHYNE, Defendant
KERNER & KERNER, P.C., LLP, By: Alison Cannata Hendele, Esq., Attorney for Plaintiff. CANNATA HENDELE & CANNATA, By: Kenneth T. Kerner, Esq., Attorney for Defendant.
Unpublished Opinion
APPEARANCES:
KERNER & KERNER, P.C., LLP, By: Alison Cannata Hendele, Esq., Attorney for Plaintiff.
CANNATA HENDELE & CANNATA, By: Kenneth T. Kerner, Esq., Attorney for Defendant.
PRESENT: HON. DELORES J. THOMAS, J.S.C.
DECISION AFTER TRIAL
HON. DELORES J. THOMAS, J.S.C.
This is an action for personal injuries. At the close of plaintiffs case, defendant Deloris Whyne, moves for an order, pursuant to CPLR § 4401, for judgement as a matter of law on the grounds that Plaintiff failed to prove a prima facie case against her. This motion is opposed by plaintiff.
Background
This action arose out of an accident that occurred on April 20, 2010. Plaintiff alleged she was walking past 9229 Foster Avenue in Brooklyn, New York ("the property"), when she tripped over a sidewalk defect that caused her to fall onto the sidewalk and injure her right shoulder. The property generates income for the defendant, who does not reside there. Plaintiff contends the defendant failed to keep the property in a reasonably safe condition was aware of the defect on the defendant's property yet failed to keep the property in a reasonably safe condition even though she was aware of the defect on the property's sidewalk.
Plaintiff testified Plaintiff was walking home at approximately 1:30 pm on a nice-weather day when her toe tripped on something. The trip caused her to fall forward. She tried to break the fall by sticking out her right arm. She landed on her right hand and right knee. While on the ground she noticed a crack on the sidewalk. Plaintiff did not measure the crack in the sidewalk but determined the crack was more than an inch. Plaintiff avers nothing else could have caused the accident. That there was not any garbage, debris, moisture, leaves, ice, branches or anything that could have caused her to trip and fall. After laying on the ground for a few minutes, the plaintiff got up. Plaintiff saw blood on her knee and called 911.
Discussion
"'A motion for judgement as a matter of law pursuant to CPLR § 4401 may be granted where the trial court determines that, upon the evidence presented, there is no rational process by which the [trier of fact] could base a finding in favor of the nonmoving party'" (Boriello v Loconte, 181 A.D.3d 856, 857 [2d Dept. 2020] quoting PAS Tech. Servs. F Middle Vil. Healthcare Mgt., LLC, 92 A.D.3d 742, 744 [2d Dept. 2012]). "In considering such a motion, 'the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'" (Boriello v Loconte, 181 A.D.3d 856, 857 [2d Dept. 2020] quoting PAS Tech. Servs. v Middle Vil. Healthcare Mgt., LLC, 92 A.D.3d 742, 744 [2d Dept. 2012]).
As a general rule, "the issue of whether a dangerous or defection condition exists depends on the facts of each case and is a question of fact for the jury" (Palladino v City cf New York, 127 A.D.3d 708, 709 [2d Dept 2015]). "However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, not constituting a trap or a nuisance, upon which a pedestrian might merely stumble, stub his or her toes, or trip" (Speredowich v Long Island Rail Road Company, 164 A.D.3d 855 [2d Dept 2018]). "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" (Trincere v County cf St.jfolk, 665 N.Y.S.2d 615 [1997]). "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" (id.). "[A] small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperil[s] the safety of a pedestrian" (Hutchinson v Sheridan Hill House Coip., 19 N.Y.S.3d 802 [2015]). "Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable" (Melia v 50 Court Street Associates, 153 A.D.3d 703 [2d Dept 2017]).
Here, Plaintiff testified that she hit her toe on the sidewalk defect outside of defendant's property and it caused her to fall (8/8/23 tr at 20). Plaintiff had traversed over the sidewalk defect every day (8/8/23 tr at 26). She did not think it was a big crack when she walked (8/8/23 tr at 26). Plaintiff stated that the sidewalk defect was more than an inch (8/8/23 tr at 22, 85). Plaintiff entered three photos of the sidewalk defect into evidence (pl. ex. 2 - 4). After accepting the plaintiff s evidence as true and affording her every favorable inference which may be properly drawn from the facts presented, the court finds that the sidewalk defect that caused the plaintiff to trip and fall was trivial as a matter of law and, therefore, not actionable.
Accordingly, it is hereby ORDERED that defendant's motion for judgment as a matter of law is granted; and it is further
ORDERED that plaintiffs action is dismissed.
Any issue raised and not specifically addressed by this decision/order is denied.
This constitutes the decision and order of the Court.