Jacob Ain v Three School Street

Ain v Three School St. 2004 NY Slip Op 05177 [8 AD3d 413] June 14, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Jacob Ain et al., Respondents,
v
Three School Street, Appellant.

—[*1]

In an action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Nassau County (O'Connell, J.), dated October 15, 2003, which, upon a jury verdict on the issue of liability, finding the plaintiff Jacob Ain 40% at fault and it 60% at fault in the happening of the accident, and upon the denial of its motion pursuant to CPLR 4404 (a), to set aside the verdict and for judgment in its favor as a matter of law, is in favor of the plaintiffs and against it.

Ordered that the judgment is affirmed, with costs.

Contrary to the appellant's contention, the evidence did not support the conclusion that the elevation between two surfaces of the sidewalk, upon which the injured plaintiff tripped and fell, was a defect too trivial to be actionable (see Smith v A.B.K. Apts., 284 AD2d 323 [2001]; Sanna v Wal-Mart Stores, 271 AD2d 595 [2000]; Nin v Bernard, 257 AD2d 417 [1999]).

The appellant's remaining contentions are without merit. H. Miller, J.P., Goldstein, Luciano and Spolzino, JJ., concur.