In Pion v. New York City Hous. Auth. (App. Div. 1st Dept. Feb. 10, 2015), the Appellate Division, First Department affirmed the denial of defendant’s motion for summary judgment dismissing plaintiff’s complaint. In this personal injury premises liability lawsuit, plaintiff alleged that he was injured when he tripped and fell down a staircase in defendant’s building.
In holding that dismissal was unwarranted, the court explained:
Contrary to defendant’s contention that plaintiff does not know what caused him to trip and fall down its staircase, plaintiff testified at his examination before trial that the circle he drew on a photograph during his General Municipal Law § 50-h hearing showed the location on the upper platform where his shoe got caught before he tripped and fell, and that the upper platform was broken and uneven. This testimony, coupled with plaintiff’s expert affidavit identifying a toe-trap and a dangerous tripping hazard at the identified location as well as a gap between expansion joints is sufficient to raise an issue of fact whether plaintiff’s fall was caused by the allegedly defective condition in the platform.
Defendant submitted no measurements of the alleged defect in support of its contention that the defect was trivial as a matter of law, and in any event plaintiff’s expert’s opinion that the gap and the height differential constituted a trap, particularly in light of its location at the top of a staircase, raises an issue of fact whether the defect, trivial or not, had the characteristics of a trap.