MARBLE CHIP IN STEP "NOSING" IS "TRIVIAL DEFECT" AND DEFEATS STAIRWAY TRIP-AND-FALL CASE; SUMMARY JUDGMENT GRANTED TO DEFENSE

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

Case: Grosskopf v. 8320 Parkway Towers Corp.

Date: Oct. 11, 2011

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

Comment:

Court throws out this stairway trip and fall case because it finds a trivial defect. In other words, the problem with the stairs is so insignificant that the injured plaintiff should not have fallen and therefore isn't allowed to sue -- summary judgment is granted to the defense, dismissing this case.

The court is supposed to consider the "width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstances of the injury." Does it really do this? Who knows? In this case the defect was a chip in the "nose" of a marble step.

If this seems ridiculous, it is. Usually this is an issue for a jury. One could argue that the question of whether a defect is trivial should always be an issue for a jury.

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SHE DIES IN TRIP-AND-FALL ACCIDENT ON SIDEWALK; CASE DISMISSED BECAUSE OF "TRIVIAL DEFECT" (Posted by Queens accident attorney Gary E. Rosenberg on Nov 13, 2011)

NOT A "TRIVIAL DEFECT" IN TRIP-AND-FALL ACCIDENT (Posted by Queens accident attorney Gary E. Rosenberg on Nov 15, 2011)

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In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Knipel, J.), dated October 8, 2010, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

During the afternoon of March 25, 2006, the plaintiff allegedly was injured when she fell while descending the lobby stairs of her Brooklyn apartment building, which was owned by the defendant 8320 Parkway Towers Corp., and managed by the defendant Superior Realty Group, LLC. The plaintiff attributed her fall to a chip in the second step from the bottom of the five‑step marble stairway. The defendants moved for summary judgment dismissing the complaint on the ground that, as a matter of law, the chip was a nonactionable trivial defect. The Supreme Court denied the motion. We reverse.

"[W]hether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury' " (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [some internal quotation marks omitted], quoting Guerrieri v. Summa, 193 A.D.2d 647, 647, 598 N.Y.S.2d 4 [internal quotation marks omitted]; see Dery v. K Mart Corp., 84 A.D.3d 1303, 1304, 924 N.Y.S.2d 154). However, some defects are trivial and, therefore, not actionable as a matter of law (see Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489; Fontana v. Winery, 84 A.D.3d 863, 864, 923 N.Y.S.2d 594; Trumboli v. Fifth Ave. Paving, 59 A.D.3d 706, 873 N.Y.S.2d 742). For a court to determine whether a defect is trivial as a matter of law, it must examine all of the facts presented including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstances of the injury (see Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489; Losito v. JP Morgan Chase & Co., 72 A.D.3d 1033, 1034, 899 N.Y.S.2d 375; Aguayo v. New York City Hous. Auth., 71 A.D.3d 926, 927, 897 N.Y.S.2d 239; Pennella v. 277 Bronx Riv. Rd. Owners, 309 A.D.2d 793, 794, 765 N.Y.S.2d 531).

Here, the defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony and photographs of the subject staircase. The plaintiff testified at her deposition that she used the subject staircase on a daily basis and had never observed any chip in the steps, that the area where she fell was well‑lit, that the stairs were free of liquid or debris, and that nothing obstructed her view as she descended the stairs. In addition, the plaintiff had used the subject stairs without incident shortly before her fall. Regarding the alleged defect, the evidence revealed that it consisted of a chip measuring less than two inches wide, located almost entirely on the nosing of the second to last step from the bottom, and not on the walking surface. Upon an examination of all of the facts presented, the alleged defect did not possess the characteristics of a trap or nuisance, was trivial and, therefore, not actionable (see Koznesoff v. First Hous. Co., Inc., 74 A.D.3d 1027, 1028, 904 N.Y.S.2d 101; Losito v. JP Morgan Chase & Co., 72 A.D.3d at 1034, 899 N.Y.S.2d 375; Chillemi v. National Birchwood Corp., 16 A.D.3d 612, 612-613, 792 N.Y.S.2d 551; Guerriero v. Jand, 57 A.D.3d 365, 366, 870 N.Y.S.2d 12).

In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Koznesoff v. First Hous. Co., Inc., 74 A.D.3d at 1028, 904 N.Y.S.2d 101; Guerriero v. Jand, 57 A.D.3d at 366, 870 N.Y.S.2d 12). Since the expert affidavit submitted by the plaintiff was speculative, conclusory, and unsupported by any evidence in the record, it was insufficient to raise a triable issue of fact (see Micciola v. Sacchi, 36 A.D.3d 869, 871, 828 N.Y.S.2d 572; Tomol v. Sbarro, Inc., 306 A.D.2d 461, 761 N.Y.S.2d 845).

The plaintiff's remaining contentions either are without merit or have been rendered academic by our determination.

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.

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