Opinion
21501/2017
04-05-2019
Christopher PARHAM, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
Linda M. Brown, Esq., Herzfeld & Rubin, PC, 125 Broad Street, 12th Floor, New York, New York 10004, for defendant. Kurt Robertson, Esq., Krentsel & Guzman, LLP, 17 Battery Place, Suite 604, New York, New York 10004, for plaintiff.
Linda M. Brown, Esq., Herzfeld & Rubin, PC, 125 Broad Street, 12th Floor, New York, New York 10004, for defendant.
Kurt Robertson, Esq., Krentsel & Guzman, LLP, 17 Battery Place, Suite 604, New York, New York 10004, for plaintiff.
Llinet M. Rosado, J.
In a negligence action to recover damages for personal injuries plaintiff allegedly sustained as a result of a trip-and-fall accident that occurred on the defendant's property, the defendant seeks summary judgment dismissing the complaint.
On November 3, 2016, plaintiff tripped over an allegedly uneven and chipped step located at the entrance of 409 East 149th Street and he subsequently commenced this action against the defendant. According to plaintiff's bill of particulars, his fall was precipitated by a "hazardous and defective condition" of which the defendant had actual or constructive notice (bill of particulars at ¶ 6). At his 50-h hearing, plaintiff testified that he was dropped off by vehicle at 1am (50-h hearing transcript pp 25-26). As plaintiff climbed the steps to the entrance, he was looking into the building to see if it was safe to go inside because he saw some people in the building whom he did not know (id at 31-32). Plaintiff further testified that as he climbed the steps his right toe got caught on the lip of the step (id at 32, 35) causing his fall.
Defendant seeks summary judgment dismissing the complaint on the ground that the alleged stairway defects were, as a matter of law, trivial and, therefore, not actionable. In support of the motion and among other things, the defendant submits plaintiff's statutory hearing testimony, the photograph marked by plaintiff at the deposition which plaintiff admitted accurately reflected the alleged condition at the time of the incident, and the sworn affidavit of investigator Carlos A. Thomas, who measured the alleged height differential as less than one half inch. Specifically, defendant argues that it has established its entitlement to summary judgment as the alleged hazard constitutes a trivial or de minimis condition which is non-actionable as a matter of law.
The plaintiff opposes the motion and argues that defendant failed to establish its prima facie entitlement to summary judgment. Alternatively, plaintiff argues that there are triable issues of fact that warrant a denial of the motion nonetheless. In opposition, and among other things, plaintiff submits the EBT of non-party witness Devorah Albarran, photographs of the condition on the subject stairs, and a licensed professional engineer's report.
In reply, defendant argues it met its burden of proving its prima facie entitlement to summary judgment as a matter of law and that plaintiff has failed to raise a triable issue of fact.
A "defendant seeking summary judgment dismissing the complaint in a slip-and-fall action on the ground that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or surrounding circumstances do not increase the risks it poses. Only then does the burden shift to plaintiff to establish an issue of fact" see Hutchinson v. Sheridan Hill House Corp. , 26 NY3d 66, 41 NE3d 766, 19 NYS3d 802, 2015 NY Slip Op 07578 (Court of Appeals 2015). That an alleged defect presented only a small difference in height or was otherwise physically insignificant does not necessarily mean that the alleged defect was trivial ( id. at 77 ). 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" see Trincere v. County of Suffolk , 90 NY2d 976, 688 NE2d 489, 665 NYS2d 615, 1997 NY Slip Op. 08600 (Court of Appeals 1997). Accordingly, whether a particular alleged defect constitutes an actionable condition is generally a question of fact (see Trincere v. County of Suffolk, supra ).
Viewing the evidence in the light most favorable to plaintiff (see Vega v. Restani Construction Corp. , 18 NY3d 499 [2012] ) and considering the various Trincere factors listed above, while examining all of the facts presented including the width, depth, elevation, irregularity, and appearance of the defect along with the time, the fact that the incident occurred on the front steps of the entrance/exit to the subject building and the circumstances of the plaintiff's injury, the Court finds that the issue of whether the alleged defect constitutes an actionable condition is a question of fact warranting a denial of the instant motion (see Trincere v. County of Suffolk, supra ).
The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, as such, their motion must be denied, regardless of the sufficiency of plaintiff's opposition (see Winegrad v. New York University Med. Ctr. , 64 NY2d 851 [1985] ).
Accordingly, it is hereby ORDERED that defendant's motion is denied; and it is further
ORDERED that the defendant shall serve a copy of this Order with Notice of Entry upon the plaintiff within thirty (30) days of entry of this Order.
This constitutes the decision and order of the court.