DaSilva v New York City Tr. Auth.

[*1] DaSilva v New York City Tr. Auth. 2013 NY Slip Op 52202(U) Decided on December 23, 2013 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2013
Supreme Court, New York County

Theresa DaSilva, Plaintiff,

against

New York City Transit Authority, Defendant.



103208/11



For plaintiff:

Finz & Finz, P.C.

by: Jay L. Feigenbaum

410 Jericho Turnpike

Mineola NY 11501

(516) 433-3000

For defendant:

Davis S. Kritzer & Associates, P.C.

by: David S. Kritzer, Esq.

180 East Main St, Suite 204

Smithtown NY 11787

(631) 979-4777

Michael D. Stallman, J.

Upon the foregoing papers, it is ordered that defendant's motion for summary judgment is denied. [*2]

Plaintiff allegedly tripped and fell on a step on stairway P4A which accesses a platform in the Rockefeller Center, IND division subway station. It appears that metal treads installed on the horizontal surface of each of the concrete steps did not extend the full horizontal length of the steps on the accident date. Plaintiff claims to have fallen because of the uneven surface thereby created, when she stepped onto the end edge of the short metal tread, causing instability.

Defendant New York City Transit Authority has not met its burden of demonstrating entitlement to judgment as a matter of law. Defense counsel, without evidentiary basis, argues that the lower, untreaded, far ends of the steps should be considered a drainage canal or channel. The Appellate Division, Second Department has recognized that a drainage canal or channel is a useful design feature and not a defect or hazard where placed at the extreme edge of the stairway and (not on the expected walking surface. (Puma v New York City Tr. Auth., 55 AD3d 585 [2d Dept. 2008].)

Here, unlike Puma, there is no proof that the short metal treads were designed or intended to create a drainage canal. Unlike the plaintiff in Puma, plaintiff here has come forward with expert evidence. Plaintiff's expert asserts that the concrete steps / risers end 1.5 inches from the wall but that the metal treads affixed on top of the steps were 3.5 to 4 inches shorter than the underlying concrete treads themselves (Schwartzberg Aff. ¶¶ 9-13 et seq.), producing a hidden fall off (vertical height differential) of 3/8 of an inch. Thus, even if the 1.5 inch space between the concrete steps and the staircase wall were to be considered a drainage channel, the steel plates being shorter than the concrete treads cannot be said, as a matter of law, to be a drainage channel or part of one. Moreover, the Court cannot say, as a matter of law, that the end edge of the metal treads was completely under the bannister and was not on a foreseeable walking surface. There appears to be conflict between the defense engineer, Ms. Cadet, and plaintiff's engineer, Mr. Schwartzberg, including as to whether the subject height differential was under the handrail.

Moreover, despite the apparent vertical height differential of 3/8 of an inch as measured by Mr. Schwartzberg, the Court cannot find that it is a trivial defect, unactionable as a matter of law. Rather, given the evidence proffered by plaintiff that it was hidden and not readily apparent to someone descending the stairs, there is a triable factual question of whether it was effectively a trap or snare.

Dated: December 23,2013/s/, J.S.C.

New York, New York