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Mayo v. Santis

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 8, 2010

BIRGIT MAYO, PLAINTIFF-RESPONDENT,
v.
GEORGE T. SANTIS, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered on or about November 17, 2009, which denied defendants' motion for summary judgment, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P. J., Sweeny, Richter, Abdus-Salaam, RomÁn, JJ.

101810/07

In exercising its function of issue-finding rather than issue-determination (see Insurance Corp. of N.Y. v Central Mut. Ins. Co., 47 AD3d 469, 472 [2008]), the motion court properly determined that photographs of defendants' stair step, upon which plaintiff tripped and fell, demonstrated not only the quarter-inch rise at the edge of the step where plaintiff testified she tripped, but also the approximately 12 inches of missing bullnose protector and an exposed nail in the middle of the step. Based on these photographs, a jury could also reasonably conclude that this step was more worn than the steps beneath it and was surfaced with slippery linoleum. This presents a question of fact as to whether the condition of the step constituted a defect that -- despite its triviality (see Argenio v Metropolitan Transp. Auth., 277 AD2d 165, 166 [2000]) -- nonetheless had the characteristics of a trap or a snare (see Rivera v 2300 X-tra Wholesalers, 239 AD2d 268 [1997]).

We have considered defendants' other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100608

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