Kamps v New York City Tr. Auth.

Kamps v New York City Tr. Auth. 2011 NY Slip Op 07691 Decided on November 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 1, 2011
Saxe, J.P., Friedman, Acosta, DeGrasse, Abdus-Salaam, JJ.
5540 406191/07

[*1]Lisa Ann Duac Kamps, et al., Plaintiffs-Respondents,

v

The New York City Transit Authority, et al., Defendants-Appellants.




Wallace D. Gossett, Brooklyn (Lawrence A. Silver of counsel),
for appellants.
Soren & Soren, Staten Island (Steven J. Soren of counsel),for
respondents.

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 AD3d 665, 666 [2010]; Burke v Canyon Rd. Rest., 60 AD3d 558, 559 [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 AD3d 89, 92 [2011]; Chafoulias v 240 E. 55th St. Tenants Corp., 141 AD2d 207, 210-212 [1988]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 1, 2011

CLERK