SKIER v. CITY OF NEW YORK (2001)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Kitzes, J.), entered December 28, 2000, which, upon a jury verdict, is in favor of the defendant and against them dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiffs commenced this action against the defendant City of New York after the plaintiff Rose Skier was allegedly injured when she tripped and fell while in a city park in Queens.   At trial, the injured plaintiff testified that she was descending what she believed to be a staircase, comprised of soil and grass steps bound at the edge by wooden timbers, when she tripped on a wooden timber after her toe became stuck in a depression in the dirt “step”.

The plaintiffs failed to present evidence that the City either created the alleged defect at issue, or had actual or constructive notice of the alleged defect for a reasonable time prior to the accident in order to remedy the defect (see, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795).   Thus, the jury verdict in favor of the defendant was proper.

In light of our determination, we need not reach the plaintiffs' contentions concerning alleged errors in the jury charge (see, J.R. Loftus, Inc. v. White, 85 N.Y.2d 874, 876, 626 N.Y.S.2d 52, 649 N.E.2d 1196;  see also, Mercy Community Hosp. v. Cannon Design, 235 A.D.2d 405, 652 N.Y.S.2d 87).