Opinion
2016-07477 Index No. 705949/13
08-22-2018
Judith SPEREDOWICH, appellant, v. LONG ISLAND RAIL ROAD COMPANY, respondent.
Erlanger Law Firm PLLC, New York, N.Y. (Robert K. Erlanger of counsel), for appellant. Krez & Flores, LLP, New York, N.Y. (William J. Blumenschein of counsel), for respondent.
Erlanger Law Firm PLLC, New York, N.Y. (Robert K. Erlanger of counsel), for appellant.
Krez & Flores, LLP, New York, N.Y. (William J. Blumenschein of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert L. Nahman, J.), entered July 13, 2016. The order 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 affirmed, with costs.
The plaintiff commenced this action against the defendant, the Long Island Rail Road Company, alleging that she sustained personal injuries when the heel of her right shoe became caught in a crack on a train platform at Pennsylvania Station, causing her to fall. The action proceeded to a jury trial. The plaintiff testified at trial that the crack was approximately ½ inch wide, 9 to 12 inches long, and ¼ inch deep. The plaintiff also introduced photographs depicting the crack.
After the plaintiff rested, the defendant orally moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, arguing that the crack was trivial and nonactionable as a matter of law. The Supreme Court granted the defendant's motion. The plaintiff appeals, and we affirm.
"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party" ( Szczerbiak v. Pilat , 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ; see Hamilton v. Rouse , 46 A.D.3d 514, 516, 846 N.Y.S.2d 650 ). In considering such 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" ( Szczerbiak v. Pilat , 90 N.Y.2d at 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ; see Raia v. Berkeley Coop. Towers Section II, Corp. , 147 A.D.3d 989, 991, 48 N.Y.S.3d 410 ).
As a general rule, "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" ( Palladino v. City of New York , 127 A.D.3d 708, 709, 7 N.Y.S.3d 207 ). However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, upon 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 ; Cortes v. Taravella Family Trust , 158 A.D.3d 788, 789, 68 N.Y.S.3d 894 ). "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 of Suffolk , 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). "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’ " ( Sturm v. Myrtle Catalpa, LLC , 149 A.D.3d 1130, 1131, 53 N.Y.S.3d 356, quoting Trincere v. County of Suffolk , 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489 ). "[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 Corp. , 26 N.Y.3d 66, 78, 19 N.Y.S.3d 802, 41 N.E.3d 766 [internal quotation marks omitted] ).
Here, accepting the plaintiff's evidence as true and affording her every favorable inference which may be properly drawn from the facts presented (see Szczerbiak v. Pilat , 90 N.Y.2d at 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ), the crack that allegedly caused the plaintiff to trip and fall was trivial as a matter of law and, therefore, not actionable (see Melia v. 50 Ct. St. Assoc. , 153 A.D.3d 703, 703, 60 N.Y.S.3d 331 ; Kavanagh v. Archdiocese of City of N.Y. , 152 A.D.3d 654, 654, 58 N.Y.S.3d 579 ). Accordingly, we agree with the Supreme Court's determination granting the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint.
MASTRO, J.P., DILLON, LASALLE and CONNOLLY, JJ., concur.