Cassizzi v Fordham Univ.

Cassizzi v Fordham Univ. 2012 NY Slip Op 09172 Decided on December 27, 2012 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 December 27, 2012
Mazzarelli, J.P., Moskowitz, DeGrasse, Manzanet-Daniels, Clark, JJ.
8902 300521/09

[*1]Nicholas Cassizzi, et al., Plaintiffs-Appellants,

v

Fordham University, Defendant-Respondent.




Michael A. Russo, White Plains (Christopher Riley of counsel),
for appellants.
Harrington, Ocko & Monk, LLP, White Plains (Dawn M.
Foster of counsel), for respondent.

Order, Supreme Court, Bronx County (Lizbeth González, J.), entered April 10, 2012, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was warranted in this action for personal injuries sustained by plaintiff Nicholas Cassizzi when, while descending stairs within a building on defendant's campus, he fell down the stairs. Although any alleged inconsistency in plaintiff's deposition testimony as to how the accident occurred, and whether his foot touched the stair before he fell, raised issues of credibility that are for a trier of fact (see Cuevas v City of New York, 32 AD3d 372, 373 [1st Dept 2006]; Francis v New York City Tr. Auth., 295 AD2d 164 [1st Dept 2002]), the photographs of the subject stair and the affidavit of plaintiff's expert demonstrate that the defect in the stair was trivial.

Further, plaintiff failed to present evidence indicating that the "defect presented a significant hazard, notwithstanding its minimal dimension, by reason of location, adverse weather or lighting conditions, or other circumstances giving it the characteristics of a trap or snare" (Gaud v Markham, 307 AD2d 845 [1st Dept 2003]; see Cintron v New York City Tr. Auth., 77 AD3d 410, 411 [1st Dept 2010]).

We have considered plaintiff's remaining contentions and find them unavailing.

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

ENTERED: DECEMBER 27, 2012

CLERK