PEZZELLO v. LLC (2019)

Defendant established prima facie that the condition of the steps on which plaintiff allegedly slipped and fell, a gradual and shallow depression of the surface toward the center of each step resulting from normal wear and tear, was a trivial and therefore nonactionable defect (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997];  Cintron v. New York City Tr. Auth., 77 A.D.3d 410, 411–412, 908 N.Y.S.2d 190 [1st Dept. 2010];  Santiago v. United Artists Communications, 263 A.D.2d 407, 693 N.Y.S.2d 44 [1st Dept. 1999] ).  In opposition, plaintiff failed to raise an issue of fact as to the trivial nature of defeat.  Plaintiff concedes that the handrails do not violate any code provisions, relying instead on a claim of common-law negligence that the stairs were hazardous.  Although on this appeal defendant does not contest whether the condition was hazardous, it contends that plaintiff failed to establish causation.  Plaintiff's testimony that she was holding the right side handrail at the moment of her fall, while stepping down from the fourth to the third step demonstrates that the absence of a handrail did not proximately cause her accident (see Luna v. CEC Entertainment, Inc., 159 A.D.3d 445, 71 N.Y.S.3d 80 [1st Dept. 2018] ).  At no time did she testify that she tried to reach for a handrail to break her fall and that there was none (compare Gold v. 35 East Assoc. LLC, 136 A.D.3d 453, 24 N.Y.S.3d 622 [1st Dept. 2016] ).  Plaintiff's testimony that she told a triage nurse that “there was nothing for me to grab onto” does not create any issue of fact, especially in view of her factually irreconcilable direct testimony about the mechanics of the fall.