Opinion
18538/1994.
Decided November 12, 2004.
In the instant action, plaintiffs seek recovery in tort damages allegedly as a result from an alleged trip and fall while exiting the Franklin Avenue Subway Station on the walkway exit of the 2, 3 and 4 lines.
Plaintiffs brought this action against the New York City Transit Authority, hereinafter referred to as "NYCTA", alleging it was NYCTA's duty to detect and repair the defect which caused plaintiff Judith A. Panday to trip and fall and for plaintiff's subsequent injuries.
NYCTA now moves for summary judgment against plaintiffs, alleging that the defect which caused plaintiff's injuries is trivial in nature and not actionable as a matter of law.
Generally, courts have ruled that trivial defects are not actionable, and in determining whether a defect is trivial, a 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 circumstances of the injury. Trincere v. County of Suffolk, 90 NY2d 976 (1997)
In the instant motion, defendant argues that because the defect in the subway station was trivial in nature, summary judgment should be granted. The defendant provides testimony from her deposition where she states that she stubbed her toe on a little ridge in the concrete. (Page 11, Line 21 to Page 12, Line 2). Further, when asked about the defect that caused her alleged trip and fall, plaintiff stated that it was a little bit, it had a little ridge. (Page 12, Line 7). Further, the copies of photographs provided by plaintiffs annexed show the defect to be de minimus and trivial.
The court in Pennella v. 277 Bronx River Road Owners, Inc., 309 AD2d 793 (2nd Dept., 2003), ruled that where the plaintiff fell on a crack in the ground, evidence including photographs depicting both the general area where the incident occurred and the crack which allegedly caused the injured plaintiff's fall supported court's conclusion that, as a matter of law, the alleged defect was too trivial to be actionable ( citing Wasserman v. Genovese Drug Stores, 282 AD2d 447; Morales v. Riverbay Corp., 226 AD2d 271; Sanna v. Wal-Mart Stores, 271 AD2d 595).
Moreover, the court in Reilly v. James A. Dever School, 307 AD2d 992 (2003), ruled that when a plaintiff allegedly tripped and fell over a sprinkler head, the evidence, including the plaintiff's testimony, the photographs which she identified as accurately depicting the sprinkler head over which she tripped, and the place and circumstances of the alleged injury, established that the sprinkler head was too trivial to be actionable as a matter of law.
Lastly, in opposition to the defendant's prima facie case for summary judgment, the plaintiff failed to raise a triable issue of fact. Plaintiff provides some evidence that repairs were made to the area where plaintiff allegedly tripped and fell. Although the repairs are less than cosmetically appealing, plaintiff's testimony and pictures show that there was a smooth surface, free of any defect other than a trivial defect.
For the foregoing reasons, NYCTA's motion for summary judgment is granted, and the summons and complaint as against NYCTA are hereby dismissed.