SMOLEN v. KMART INC

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Supreme Court, Appellate Division, Fourth Department, New York.

Piotr SMOLEN and Anna Smolen, Plaintiffs-Appellants, v. KMART, INC., B & W Limited Partnership, B & W Partnership, James V. Welch, as General Partner and/or Partner and/or Limited Partner of B & W Limited Partnership and/or B & W Partnership, and James V. Welch, Individually, Defendants-Respondents.  (Appeal No. 2.)

Decided: December 31, 2003

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ. O'Shea, Reynolds & Cummings, Buffalo (Nelson E. Schule, Jr., of Counsel), for Plaintiffs-Appellants. Cohen & Lombardo, P.C., Buffalo (Bethany A. Rubin of Counsel), for Defendant-Respondent Kmart, Inc. Lustig & Brown, LLP, Buffalo (Maurice L. Sykes of Counsel), for Defendants-Respondents B & W Limited Partnership, B & W Partnership, James V. Welch, As General Partner and/or Partner and/or Limited Partner of B & W Limited Partnership and/or B & W Partnership, and James V. Welch, Individually.

 Plaintiffs commenced this action seeking damages for injuries sustained by Piotr Smolen (plaintiff) when he either slipped or tripped on a ramp leading to a store operated by defendant Kmart, Inc. Defendants moved to dismiss the complaint at the close of plaintiffs' proof at trial.   Supreme Court reserved decision and thereafter granted the motions after certain witnesses had testified for defendants.   In deciding such a motion, the court must view the evidence in the light most favorable to the nonmovant, “who must be accorded ‘every favorable inference which may properly be drawn from the evidence’ ” (Fernandes v. Allstate Ins. Co., 305 A.D.2d 1065, 1065, 758 N.Y.S.2d 729).   Contrary to the contention of plaintiffs, they failed to establish that a defective condition existed on the ramp.   Although the issue whether a dangerous or defective condition exists on property is generally one of fact for the jury, some defects are “too trivial to be actionable” and thus present no issue of fact (Riser v. New York City Hous. Auth., 260 A.D.2d 564, 564, 688 N.Y.S.2d 645;  see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977-978, 665 N.Y.S.2d 615, 688 N.E.2d 489).   In this case, plaintiff testified that his fall was caused by a depression in the ramp.   Plaintiff, however, did not notice a defect in the ramp prior to his fall, and employees of defendants did not see any defect in the ramp either before or after plaintiff's fall.   Plaintiffs' expert testified that the ramp was defective because it was too narrow and steep, but the expert failed to address the alleged depression in the ramp that caused plaintiff's fall.   Upon our review of the photographs of the ramp that were received in evidence at trial, we conclude that they fail to depict any defect.   Under these circumstances, we conclude that any alleged defect was not actionable (see Grover v. State of New York, 294 A.D.2d 690, 691, 742 N.Y.S.2d 413;  Squires v. County of Orleans, 284 A.D.2d 990, 726 N.Y.S.2d 536;  Santiago v. United Artists Communications, 263 A.D.2d 407, 408, 693 N.Y.S.2d 44;  Figueroa v. Haven Plaza Hous. Dev. Fund Co., 247 A.D.2d 210, 668 N.Y.S.2d 203).

 In any event, even assuming, arguendo, that a defective condition existed on the ramp, we conclude that plaintiffs failed to establish that defendants either created the condition or had actual or constructive notice of it.   There was no testimony concerning the manner in which the defect was created or how long it had allegedly existed.   Plaintiffs' assertion that the defect existed since the ramp had been built was mere speculation and thus was insufficient to raise an issue of fact (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Littleton v. Hudson Val. Hosp. Ctr., 274 A.D.2d 418, 419, 711 N.Y.S.2d 783).   Plaintiffs further contend that they should have been permitted to introduce evidence of subsequent accidents inasmuch as defendants were permitted to present testimony that there were no prior accidents.   Although we agree with plaintiffs that evidence of subsequent accidents may be admissible (see Hardy v. Tops Mkts., 231 A.D.2d 879, 880, 647 N.Y.S.2d 603;  Niemann v. Luca, 214 A.D.2d 658, 625 N.Y.S.2d 267), here plaintiffs did not attempt to introduce any such evidence.   In light of our determination, we do not reach plaintiffs' remaining contentions.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: