"OPTICAL CONFUSION" CLAIM FAILS BY SUBWAY SIDEWALK; DEFENSE SUMMARY JUDGMENT GRANTED

Summary judgment grantedCourt: Supreme Court, Appellate Division, First Department, New York

Case: Kamps v. The New York City Transit Authority

Date: Nov. 1, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident lawyer)

Comment: Accident victim fell on sidewalk by a subway exit. She made a claim of "optical confusion" -- which is what you do when the place of the fall isn't broken up or really defective. "Optical confusion" is difficult to prove and rarely a successful basis for a personal injury claim. Here, there was warning paint that was only partly worn away. From plainitff's photographs, the appeals court couldn't see anything really wrong with the place she fell. Summary judgment granted to the defense and this accident case dismissed.

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Order, Supreme Court, New York County (Michael D. Stallman, J.), entered February 25, 2010, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff Lisa Ann Duac Kamps fell and was injured as she stepped from a square concrete platform that abutted a subway exit stairwell at the street level. Although the platform matched the sidewalk in color, the photographic evidence shows that its perimeter was daubed with yellow paint, faded at the front edge, yet particularly visible at the left and right margins. The photographs also show that the platform ends are flush with the end of the subway enclosure and with the end of the handrail on the right side of the subway stairwell, indicating that it was part of the stairwell and not part of the sidewalk. In light of this evidence, which showed that the platform was not a dangerous trap that caused plaintiff's fall, defendants met their prima facie burden of establishing entitlement to summary judgment (see Remes v. 513 W. 26th Realty, LLC, 73 A.D.3d 665, 666, 903 N.Y.S.2d 8 [2010]; Burke v. Canyon Rd. Rest., 60 A.D.3d 558, 559, 876 N.Y.S.2d 25 [2009]).

In opposition, plaintiffs failed to submit evidence sufficient to show that the platform area created optical confusion so as to defeat defendants' prima facie showing (compare Saretsky v. 85 Kenmare Realty Corp., 85 A.D.3d 89, 92, 924 N.Y.S.2d 32 [2011]; Chafoulias v. 240 E. 55th St. Tenants Corp., 141 A.D.2d 207, 210-212, 533 N.Y.S.2d 440 [1988]).

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