Maureen Adler, Appellant,v.QPI-VIII, LLC, et al., Respondents.BriefN.Y.September 17, 2015APL-2015-00087 Queens County Clerk’s Index No. 4952/11 Appellate Division, Second Department Docket No. 2014-03181 Court of Appeals STATE OF NEW YORK MAUREEN ADLER, Plaintiff-Appellant, against QPI-VIII LLC and VANTAGE MANAGEMENT SERVICES, LLC, Defendants-Respondents. >> >> BRIEF FOR DEFENDANTS-RESPONDENTS MCGAW, ALVENTOSA & ZAJAC Attorneys for Defendants-Respondents Two Jericho Plaza, Suite 202 Jericho, New York 11753 516-822-8900 Of Counsel: Joseph Horowitz Date Completed: August 13, 2015 To Be Argued By: Joseph Horowitz Time Requested: 10 Minutes TABLE OF CONTENTS PAGE(S) TABLE OF AUTHORITIES......................................ii PRELIMINARY STATEMENT......................................1 COUNTER-STATEMENT OF FACTS.................................3 a. Parties And Factual Background........................3 b. Motion Practice And Order Of The Lower Court..........5 c. Appeal To The Second Department And Dismissal Of Complaint..........................................7 POINT I THE ALLEGED DEFECT ON THE STAIR WAS TRIVIAL IN NATURE AND HAD NONE OF THE CHARACTERISTICS OF A TRAP OR SNARE...................................10 a. Photographs Of The Stair, Coupled With Plaintiff's Testimony, Confirms That The Purported Condition Was Trivial......................12 b. Even In The Absence Of Measurements Of An Alleged Defective Condition, Courts Will Find A Defect Non-Actionable Based On An Examination Of Photographs...........................17 c. The "Defect" Was Trivial Based On Its Appearance, Taken Together With The Time, Place And Circumstances Of The Injury................19 d. The Cases Cited By Plaintiff Are Distinguishable. Unlike The Facts Of The Cases Relied Upon By Plaintiff, The Condition Over Which Plaintiff Tripped Does Not Possess Sharp, Abrupt Or Irregular Edges.....................23 CONCLUSION................................................29 -ii- TABLE OF AUTHORITIES CASES PAGE Abreu v. New York City Housing Authority, 61 A.D.3d 420, 876 N.Y.S.2d 50 (1st Dep't 2009) ...........24 Adamopoulos v. Liotti, 273 A.D.2d 260, 708 N.Y.S.2d 706 (2nd Dep't 2000) .........24 Adler v. QPI-VII, LLC, et al., 124 A.D.3d 567, 2 N.Y.S.3d 162 (2nd Dep't 2015) ............9 Argenio v. Metropolitan Transportation Authority, 277 A.D.2d 165, 716 N.Y.S.2d 657 (1st Dep't 2000).........24 Carriero v. Nazario, 116 A.D.3d 818, 983 N.Y.S.2d 422 (2nd Dep't 2014) .........22 Copley v. Town of Riverhead, 70 A.D.3d 623, 895 N.Y.S.2d 452 (2nd Dep't 2010) ..........11 Corsi v. Town of Bedford, 58 A.D.3d 225, 868 N.Y.S.2d 258 (2nd Dep't 2008) ..........16 Cruz v. Deno's Wonder Wheel Park, 297 A.D.2d 653, 747 N.Y.S.2d 242 (2nd Dep't 2002) .........27 Czochanski v. Tishman Speyer Properties, Ltd., 45 Fed.Appx. 45 (2nd Cir. 2002) ...........................14 Diakovasilis v. Bright and Sunny Corp., 265 A.D.2d 294, 696 N.Y.S.2d 220 (2nd Dep't 1999) .........16 DiNapoli v. Huntington Hosp., 303 A.D.2d 359, 755 N.Y.S.2d 655 (2nd Dep't 2003) ......13,15 Dominguez v. OCG, IV, LLC, 82 A.D.3d 434, 918 N.Y.S.2d 406 (1st Dep't 2011) ..........23 Elliott v. E. 220th St. Realty Co., 1 A.D.3d 262, 767 N.Y.S.2d 426 (1st Dep't 2003) ...........24 Encarnacion v. Tegford Realty LLC, 60 A.D.3d 581, 876 N.Y.S.2d 375 (1st Dep't 2009) ..........20 -iii- Felix-Cortes v. City of New York, 54 A.D.3d 358, 863 N.Y.S.2d 72 (2nd Dep't 2008) ...........25 Fisher v. JRMR Realty Corp., 63 A.D.3d 677, 880 N.Y.S.2d 187 (2nd Dep't 2009) ....14,15,21 Gaud v. Markham, 307 A.D.2d 845, 764 N.Y.S.2d 241 (1st Dep't 2003) .........27 Gonzalez v. Club Monaco U.S., LLC, 95 A.D.3d 549, 943 N.Y.S.2d 109 (1st Dep't 2012) ..........26 Gotay v. New York City Housing Auth., 127 A.D.3d 693, 7 N.Y.S.3d 311 (2nd Dep't 2015) ...........25 Grosskopf v. 8320 Parkway Towers Corp., 88 A.D.3d 765, 930 N.Y.S.2d 661 (2nd Dep't 2011) .......19,20 Guerriero v. Jand, 57 A.D.3d 365, 870 N.Y.S.2d 12 (1st Dep't 2008) ...........21 Guerrieri v. Summa, 193 A.D.2d 647, 598 N.Y.S.2d 4 (2nd Dep't 1993) ...........11 Hardsog v. Price Chopper Operating Co., Inc., 99 A.D.3d 1130, 952 N.Y.S.2d 802 (3rd Dep't 2012) .........17 Heeney v. Topping, 13 N.Y.2d 1049, 245 N.Y.S.2d 770 (1963)...................11 Jangana v. Nicole Equities LLC, 127 A.D.3d 458, 8 N.Y.S.3d 46 (1st Dep't 2015) ............25 Julian v. Sementelli, 234 A.D.2d 866, 651 N.Y.S.2d 678 (3rd Dep't 1996) .........18 Leon v. Alcor Assoc., L.P., 96 A.D.3d 635, 946 N.Y.S.2d 574 (1st Dep't 2012) ..........14 Madero v. Pizzagalli Const. Co., 62 A.D.3d 670, 878 N.Y.S.2d 434 (2nd Dep't 2009) ..........27 Maloid v. New York State Elec. and Gas Corp., 257 A.D.2d 712, 682 N.Y.S.2d 734 (3rd Dep't 1999) .........14 Marinaccio v. LeChambord Rest., 246 A.D.2d 514, 667 N.Y.S.2d 395 (2nd Dep't 1998) .........13 -iv- Nin v. Bernard, 257 A.D.2d 417, 683 N.Y.S.2d 237 (1st Dep't 1999) .........23 Ortiz v. 82-90 Broadway Realty Corp., 117 A.D.3d 1016, 986 N.Y.S.2d 133 (2nd Dep't 2014) ........26 Outlaw v. Citibank N.A., 35 A.D.3d 564, 826 N.Y.S.2d 642 (2nd Dep't 2006) ....18,26,27 Ramirez v. City of New York, 93 A.D.3d 833, 941 N.Y.S.2d 199 (2nd Dep't 2012) ..........22 Rivas v. Crotona Estates Housing Development Fund Co., Inc., 74 A.D.3d 541, 902 N.Y.S.2d 536 (1st Dep't 2010) ..........24 Rivera v. 2300 X-tra Wholesalers, 239 A.D.2d 268, 658 N.Y.S.2d 264 (1st Dep't 1997) .........25 Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 931 N.Y.S.2d 650 (2nd Dep't 2011) .......12,15 Sharpe v. Ulrich Development Co., LLC, 52 A.D.3d 1319, 859 N.Y.S.2d 851 (4th Dep't 2008) .........14 Spiegel v. Vanguard Constr. and Dev. Co., 50 A.D.3d 387, 860 N.Y.S.2d 11 (1st Dep't 2008) ...........21 Stachowski v. City of Yonkers, 294 A.D.2d 489, 742 N.Y.S.2d 568 (2nd Dep't 2002) .........26 Sulca v. Barry Hers Realty, Inc., 29 A.D.3d 779, 815 N.Y.S.2d 204 (2nd Dep't 2006) ..........27 Taussig v. Luxury Cars of Smithtown, Inc., 31 A.D.3d 533, 818 N.Y.S.2d 593 (2nd Dep't 2006) ..........17 Tesak v. Marine Midland Bank, 254 A.D.2d 717, 678 N.Y.S.2d 226 (4th Dep't 1998) .........21 Tineo v. Parkchester South Condominium, 304 A.D.2d 383, 759 N.Y.S.2d 9 (1st Dep't 2003) ...........23 Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615 (1997)........10,11,13,19,28 -v- Trusetta v. Wyassup-Laurel Glen Corp., 91 A.D.3d 632, 937 N.Y.S.2d 240 (2nd Dep't 2012) ..........24 Wilson v. Galicia Contracting and Restoration, Corp., 10 N.Y.3d 827, 860 N.Y.S.2d 417 (2008)....................15 -1- PRELIMINARY STATEMENT This brief is respectfully submitted on behalf of defendants-respondents QPI-VIII, LLC and Vantage Management Services, LLC (hereinafter "defendants") in response to the brief submitted by plaintiff-appellant, Maureen Adler (hereinafter, "plaintiff" or "Ms. Adler"). Plaintiff appeals from an order of the Appellate Division, Second Department, dated January 14, 2015, which granted defendants' motion for summary judgment. In this personal injury action, plaintiff seeks money damages for injuries resulting from a trip and fall accident on a staircase inside the building where she resided. It is respectfully submitted that the Appellate Division, Second Department properly granted defendants' motion as the admissible evidence established that there was no defect on the stair where plaintiff fell. Further, even if plaintiff could establish that there was a defective condition on the stair, it was trivial in nature and did not present any of the characteristics of a trap or snare. As such, the unanimous ruling of the Second Department should be affirmed. Ms. Adler alleges that she was caused to trip and fall on a small mass on a stair. The photographs of the stair, which plaintiff admits accurately depict the accident location at the -2- time of her fall, demonstrate that there was no appreciable height differential between the small mass and the surrounding area. Thus, the Appellate Division properly found the condition complained of by plaintiff did not have any of the characteristics of a trap or snare and was trivial as a matter of law. -3- COUNTER-STATEMENT OF FACTS a. Parties And Factual Background Plaintiff lived in apartment in Flushing, New York on the date of the accident (R 76)(Numbers in parentheses preceded by the letter "R" refer to pages in the Record on Appeal). Ms. Adler had been living in that building for 30 years (R 76). The building located at was owned by defendant QPI-VII, LLC (R 44, 202) and managed by defendant Vantage Management Services, LLC (R 202). On March 30, 2010, at approximately 5:00 P.M. (R 60), plaintiff left her apartment, intending to visit a friend who lived on the second floor (R 94). Although the elevators were operational that day (R 90), Ms. Adler chose to walk down the interior staircase to reach the second floor (R 51, 94). As she descended from the 5th floor to the 4th floor, there was no debris, dirt or other foreign material on the staircase (R 109). The stairway was illuminated with a 60 watt bulb (R 89-90). Immediately before tripping, plaintiff was looking forward, and was, according to her deposition testimony, "probably looking down." (R 93) She was walking alone at that time of the incident (R 94). While walking down the staircase between the 5th and 4th floors, she tripped and fell (R 56, 89). None of the stairs on -4- that staircase were cracked, nor were any of the stairs slippery (R 118). The "battleship gray" staircase contained 12 stairs (R 116). Plaintiff was unable to recall upon which of those stairs she tripped (R 106). At her deposition, Ms. Adler testified that the ball of her right foot (R 101-102) got caught on a "big clump in the middle of the stair." (R 107) She attributes the cause of her fall to that "big clump" (R 107). Photographs of the stair were presented to Ms. Adler at her deposition. Plaintiff acknowledged that the photographs fairly and accurately depict the stairway as it appeared on the date of her accident (R 177-179). Color copies of those photographs are contained in the Record on Appeal at pages 189, 190 and 191. The photographs show a stair in good condition. They depict a miniscule height differential between the "clump" and the rest of the stair. A ruler placed on top of the alleged "clump" (R 189, 190) demonstrates that there is no appreciable height differential between the "clump" and the rest of the stair. The photographs (R 189-191) reflect various perspectives of the "condition." The pictures confirm that the "clump" did not present a tripping hazard, especially as one descended the steps, as plaintiff was doing at the time of her accident. -5- Plaintiff admitted at her deposition that she had used the stairs "thousands" of times prior to her accident (R 90). While she had noticed the "condition" previously, she did not know how long it had existed (R 107-108). Ms. Adler also admitted that she never reported the "condition" to the defendants, nor, to her knowledge, had anyone else reported or complained of the "clump" (R 117). The deposition testimony of Edward Madej, the building's superintendent, demonstrates that defendants did not have notice of any allegedly defective condition. Madej would walk up and down the staircase "a few times a day" (R 217). He never noticed any uneven surface or uneven condition on the stairs between the 4th and 5th floors (R 219). The superintendent did not receive any complaints from tenants or any reports of accidents with respect to the subject staircase (R 221-222). b. Motion Practice And Order Of The Lower Court Defendants moved for summary judgment in the trial court, arguing that the condition which allegedly caused the accident was a trivial defect and not actionable as a matter of law (R 9- 34). In their motion, defendants annexed the photographs of the alleged condition and relied on well-established case law that trivial and insignificant defects are not actionable. In opposition to the motion, plaintiff claimed that -6- defendants did not meet their initial burden (R 246-274). In addition, plaintiff argued that even if defendants met their initial burden, she had nevertheless raised a triable issue of fact to defeat the motion. Plaintiff argued, without any proof to corroborate her assertion, that the defect was not trivial. In addition, Ms. Adler submitted an affidavit alleging - for the first time and in contradiction of her deposition testimony - that the stair was "cracked" and that she tripped as a result of this “cracked” condition (R 275-276). In an affirmation in reply (R 277-282), defendants demonstrated that plaintiff's affidavit directly contradicted her deposition testimony and was thus an attempt to raise a feigned issue of fact. In addition, plaintiff did not submit any proof to refute the photographic evidence that the condition was de minimus. In an order and decision dated February 4, 2014, the Supreme Court, Queen County (Hon. Denis J. Butler, J.S.C.), denied defendants' motion, stating as follows: Upon review of all of the deposition testimony, including defendants' photographs marked during deposition as exhibits A, C and D for identification, the court finds that defendants failed to establish, as a matter of law, that they did not create the alleged condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. Additionally, the bare statement by -7- defendants' attorney that the alleged unsafe condition is de minimus is unsupported by any evidence in the record currently before the court. Therefore, defendants have failed to meet their burden in establishing a prima facie case. Accordingly, defendant's motion for summary judgment dismissing the complaint is denied. (R 6-8) c. Appeal To The Second Department And Dismissal Of Complaint Defendants appealed from the ruling of the trial judge (R 2-3). As the trial of the action was approaching, defendants moved for a stay of the trial in the Appellate Division, Second Department. That motion was granted, and the appeal was perfected. In their brief submitted to the Appellate Division, the defendants argued that the lower court erred in denying the motion for summary judgment. Defendants' emphasized that photographs of the "clump" - coupled with plaintiff's admission that the photographs accurately depict the accident location - were decisive proof that the condition complained of was trivial. The small mass on the stair did not have an abrupt or sharp edge, nor was it masked or obstructed from view. Examination of the surrounding circumstances (time, place and lighting conditions) provided further support to defendants' position that the complained of "condition" was de minimus, and thus not actionable. -8- In opposition, Ms. Adler claimed that the defendants relied exclusively on the photographs to establish their right to dismissal. Without citation to any authority, plaintiff asserted that photographs alone are insufficient to establish that a condition is trivial as a matter of law. In a reply brief, defendants refuted plaintiff's contention. It is well established that where an alleged defective condition is trivial - and plaintiff acknowledges that photographs of the alleged defect accurately reflect the condition as it existed at the time of the accident - the defendant is entitled to dismissal of the complaint. In a decision and order, dated January 14, 2015, a unanimous Appellate Division, Second Department reversed the order of the trial court, granted the defendants' motion and dismissed the complaint (R 287-288). In dismissing the complaint, the Second Department ruled as follows: Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the plaintiff's deposition testimony, as well as the photographs of the subject step, which the plaintiff admitted fairly and accurately depicted the step and the "clump" that allegedly caused her to trip and fall. The evidence, and in particular the photographs, established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and therefore, was not actionable. In opposition, the plaintiff failed to raise a triable issue -9- of fact. Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint. R 288; Adler v. QPI-VII, LLC, et al., 124 A.D.3d 567,568-569, 2 N.Y.S.3d 162,164 (2nd Dep't 2015) (citations omitted) Plaintiff's subsequent motion for leave to appeal to this Court was granted (R 286-286). -10- POINT I THE ALLEGED DEFECT ON THE STAIR WAS TRIVIAL IN NATURE AND HAD NONE OF THE CHARACTERISTICS OF A TRAP OR SNARE The testimony and photographs establish that the "clump" complained of by plaintiff was not a trap or snare. Rather, the condition was trivial and thus not actionable. In determining whether a condition is trivial as a matter of law, this Court requires an examination of all of the facts presented, including the width, depth, elevation, irregularity and appearance of the condition, along with the time, place and circumstances of the injury. Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615 (1997). Trincere established that there is no minimum dimension test, nor is there a rule that a defect is actionable only if it is of a certain height or depth. Id. at 977. Moreover, this Court warned against the "mechanistic disposition" of a case premised solely on the dimensions of the defect. Id. Applying those principles, this Court ruled that the cement slab over which Ms. Trincere tripped, which was elevated at "a little over a half-inch above the surrounding paving slabs," did not present a trap or snare. Id. Given the above, it is now well settled that a property owner is not liable for trivial defects not constituting a trap or nuisance "over which a pedestrian might merely stumble, stub -11- his or her toes or trip." Copley v. Town of Riverhead, 70 A.D.3d 623, 624, 895 N.Y.S.2d 452, 453 (2nd Dep't 2010). In her brief, Adler does not argue that the guidelines set forth in Trincere should be modified. Nor does plaintiff argue that the holding in Trincere does not apply to the facts at bar. While the defendant land owner in Trincere was a municipal entity (the County of Suffolk), the same standard applies to non-municipal premises owners (such as the defendants herein). In fact, the Trincere decision relied on Guerrieri v. Summa, 193 A.D.2d 647, 598 N.Y.S.2d 4 (2nd Dep't 1993), a case involving a trip and fall in a bar. In addition, more than 50 years ago, this Court found that a trivial defect on a step at Yankee Stadium was non-actionable, affirming dismissal of the complaint. Heeney v. Topping, 13 N.Y.2d 1049, 245 N.Y.S.2d 770 (1963). The defendant landowners in Guerrieri and Heeney were non-municipal entities. Accordingly, Trincere certainly applies to the facts of this case. In fact, Ms. Adler relies on Trincere on page 10 of her brief. Nevertheless, plaintiff urges this Court to reverse the order of the Appellate Division and reinstate her complaint. Plaintiff's argument is that the Second Department erred in dismissing the complaint "based on its review of the photographs alone" (Plaintiff's brief, p. 1). Later in her brief, plaintiff urges that "the courts have chosen not to rely on photographs as -12- the single evidence as a part of the inquiry as to whether the defect is trivial" (Plaintiff's brief, p. 17). Finally, plaintiff claims that "the Appellate Division made its decision based on its review of the photographs alone, thus usurping the jury's province by making this determination of fact based on the single piece of evidence" (Plaintiff's brief, p. 18). Plaintiff's argument fails for two reasons. First, defendants rely not just on the photographs, but also on plaintiff's own deposition testimony. Ms. Adler confirmed in her deposition that photographs of the accident location accurately depict the condition of the stairs at the time of the accident (R 177–179). Second, in circumstances such as this where the condition complained of is trivial - without the characteristics of a trap or snare - pictures of the condition will establish that the defendants are entitled to dismissal of plaintiff's claims. a. Photographs Of The Stair, Coupled With Plaintiff's Testimony, Confirms That The Purported Condition Was Trivial Ms. Adler conceded at her deposition that photographs of the "clump" fairly and accurately represented the accident location (R 177-179). Photographs fairly and accurately depicting the accident site can be used to establish that a defect is trivial and thus not actionable. Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 931 N.Y.S.2d 650 (2nd Dep't -13- 2011). It is noteworthy that photographs of the concrete slab were contained on the Record on Appeal in Trincere (Pages 178-181 of Trincere Record on Appeal) and stressed in the briefs to this Court. In finding that the condition in Trincere was not actionable, this Court "examined the facts presented . . . including appearance of the defect." Trincere at 978. In DiNapoli v. Huntington Hosp., 303 A.D.2d 359,360, 755 N.Y.S.2d 655, 656 (2nd Dep't 2003), defendant's proof, analogous to the proof presented by defendants here, resulted in dismissal of the complaint. The plaintiff Rachel DiNapoli fell while walking on a worn-out footpath located next to a slightly elevated, brightly-painted curb. The defendant established its entitlement to summary judgment by submitting photographs acknowledged by the plaintiffs as accurately reflecting the condition of the footpath and the curb at the time of the accident. These photographs indicated that the alleged defect, if any, which did not have any of the characteristics of a trap or nuisance, was too trivial to be actionable. In Marinaccio v. LeChambord Rest., 246 A.D.2d 514, 667 N.Y.S.2d 395 (2nd Dep't 1998), the Second Department cited Trincere in dismissing a complaint on trivial defect grounds. The court reached their decision after examination of photographs and reviewing plaintiff's testimony. At an examination before trial, the plaintiff stated that certain photographs of the slate piece in question, taken by an acquaintance -14- shortly after her fall, accurately reflected the condition of the slate at the time of her fall. . . Here, scrutiny of the photographs identified by the plaintiff as accurately reflecting the condition of the slate at the time of her fall supports the Supreme Court's conclusion that, as a matter of law, the alleged defect, which did not have any of the characteristics of a trap or snare, was too trivial to be actionable. Id. at 514-515 The Appellate Divisions agree that a defendant landowner may rely on photographs, authenticated by plaintiff as fairly and accurately representing an accident site, to establish proof of a trivial defect. Leon v. Alcor Assoc., L.P., 96 A.D.3d 635, 946 N.Y.S.2d 574 (1st Dep't 2012) (photographs authenticated by plaintiff depicting trivial defect); Fisher v. JRMR Realty Corp., 63 A.D.3d 677, 880 N.Y.S.2d 187 (2nd Dep't 2009) (photographs of sidewalk confirmed by plaintiff illustrate non- actionable defect); Maloid v. New York State Elec. and Gas Corp., 257 A.D.2d 712, 682 N.Y.S.2d 734 (3rd Dep't 1999) (consideration of plaintiff's description of accident and clear, color photographs demonstrates claimed defect is de minimus); Sharpe v. Ulrich Development Co., LLC, 52 A.D.3d 1319, 859 N.Y.S.2d 851 (4th Dep't 2008)(after examining authenticated photographs, court determines that defect is not actionable). Federal courts have followed suit. For example, in Czochanski v. Tishman Speyer Properties, Ltd., 45 Fed.Appx. 45, -15- 47 (2nd Cir., 2002), the Second Circuit explained that "New York courts often rely on the judge's examination of photographs to determine whether a defect is trivial as a matter of law." It is telling that in her brief submitted to this Court (as well as in her in brief in the Appellate Division), plaintiff fails to distinguish Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982, 931 N.Y.S.2d 650 (2nd Dep't 2011) or DiNapoli v. Huntington Hosp., 303 A.D.2d 359, 755 N.Y.S.2d 655 (2nd Dep't 2003) - both cited by defendant in their main Appellate Division brief. More striking is that the Second Department's decision in the case at bar (R 287-288) cites no less than six decisions (including Schenpanski and Fisher), holding that a court can examine photographs of the accident location and determine, based on those pictures, that the alleged condition is trivial and non-actionable. The brief submitted by plaintiff to this Court simply ignores these holdings. It is respectfully submitted that the failure to address or distinguish these cases demonstrates that plaintiff's argument is untenable. The Appellate Division correctly found that the defendants were entitled to dismissal of the complaint. Last, with respect to the photographs, plaintiff indicates that the pictures of the subject stair were "taken years after the accident" (Plaintiff's brief, p. 17). This argument was not -16- raised before the trial court nor was it raised in the Appellate Division. As this argument is not preserved, it cannot be considered by this Court. In Wilson v. Galicia Contracting and Restoration, Corp., 10 N.Y.3d 827,829, 860 N.Y.S.2d 417, 418 (2008) this Court explained that "the requirement of preservation is not simply a meaningless technical barrier to review." This unpreserved claim is without merit, in any event. Ms. Adler testified that the photographs of the accident scene, marked as exhibits at her deposition (R 189-191), were taken by a woman identified as Nadia, who is employed by Vel Belushin, her attorney (R 176, 178-179). Plaintiff did not know when the pictures were taken (R 176, 178-179). However, plaintiff conceded that the photographs accurately depicted the step as it appeared on the date of her accident (R 177, 179-180). Thus, there is no support in the Record for plaintiff's contention that the photographs were taken years after the accident. In fact, plaintiff does not provide a Record citation for her newly advanced claim that the photos were taken several years after the accident. To the extent plaintiff is arguing that the photographs are not admissible, that argument is incorrect. A photograph is deemed admissible as "a depiction of a fact in issue . . . upon testimony of one with personal knowledge -17- that the photograph accurately represents that which it purports to depict." Corsi v. Town of Bedford, 58 A.D.3d 225,228, 868 N.Y.S.2d 258, 261 (2nd Dep't 2008); Diakovasilis v. Bright and Sunny Corp., 265 A.D.2d 294, 696 N.Y.S.2d 220 (2nd Dep't 1999) (photographs properly authenticated by testimony that they fairly and accurately represented condition of sidewalk on date of accident). Contrary to plaintiff's contention, the complaint was not dismissed based exclusively on the photographs. The above- referenced authorities uniformly hold that a court can determine that an alleged condition is trivial and non-actionable based on a review of photographs – when those photographs are authenticated by plaintiff as accurately depicting the accident location. b. Even In The Absence Of Measurements Of An Alleged Defective Condition, Courts Will Find A Defect Non-Actionable Based On An Examination Of Photographs Even though defendants here did not submit evidence of the dimensions of the condition complained of by plaintiff, courts will examine photographs and rule that a condition is insignificant and thus non-actionable. For example, in Taussig v. Luxury Cars of Smithtown, Inc., 31 A.D.3d 533, 818 N.Y.S.2d 593 (2nd Dep't 2006), plaintiff sustained injuries after tripping over a raised rubber strip in defendant's automobile dealership. The court ruled that the -18- condition was trivial and not actionable as a matter of law even though "there was no evidence submitted regarding the actual height differential between the rubber strip and the tile floor." Id. at 533. More recently, the Third Department in Hardsog v. Price Chopper Operating Co., Inc., 99 A.D.3d 1130, 952 N.Y.S.2d 802 (3rd Dep't 2012) reached the same conclusion. Plaintiff there fell after tripping on what he claimed were raised tiles in defendant's grocery store. The decision points out that "[T]he record does not contain any actual measurements of the depression created by the chipped tiles." Id. at 1131. After reviewing photographs of the condition, the court found that any defect in the tiles was trivial and defendant was entitled to dismissal of the complaint. In Outlaw v. Citibank N.A., 35 A.D.3d 564, 826 N.Y.S.2d 642 (2nd Dep't 2006), plaintiff claimed that she slipped on a "patch" located on a stair. No measurements were taken of the "patch." Photographs of the stair showed the "patch" to be small, worn and rectangular and the "defect" did not have any sharp edges and appeared to be shallow. The court found the condition was a trivial defect and dismissed the complaint. See, also, Julian v. Sementelli, 234 A.D.2d 866, 651 N.Y.S.2d 678 (3rd Dep't 1996), (upholding dismissal of complaint on trivial defect grounds even though neither party presented any evidence with regard to the -19- actual height or extent of the alleged elevation of the chip). Measurements of the stairway "clump" were not submitted by either party in the present case. The above holdings indicate that a defendant moving to dismiss on trivial defect grounds need not necessarily submit evidence quantifying the extent of the alleged defect to prove that a condition is not actionable. Rather, an examination of photographs of the trivial defect, coupled with plaintiff's testimony authenticating the photos, establish the defendant’s right to dismissal. c. The "Defect" Was Trivial Based On Its Appearance, Taken Together With The Time, Place And Circumstances Of The Injury The absence of any adverse conditions is evident from Ms. Adler's testimony. There were no complaints about the lighting conditions and plaintiff's view of the stair was not in any way obstructed as she descended the staircase. Under Trincere, courts are to examine the appearance of the defect, together with the time, place and circumstances of the injury. Applying the facts of this case - a miniscule mass, not masked or difficult to observe - on a lit staircase, it is evident that the defect complained of is trivial. Grosskopf v. 8320 Parkway Towers Corp., 88 A.D.3d 765, 930 N.Y.S.2d 661 (2nd Dep't 2011), a case with analogous facts to the instant matter, corroborates defendants' position. Ms. Grosskopf, who had tripped on a chipped stair, testified that -20- she used the staircase daily, the area where she fell was well- lit, the stairs were free of liquid or debris and nothing obstructed her view as she descended the stairs. Examining the appearance of the chipped stair as well as the circumstances surrounding the accident, the court found that the defect was not a trap or nuisance and dismissed the complaint. The same result should obtain here. By her own admission, Ms. Adler used the staircase "thousands of times" (R 90). As in Grosskopf, the staircase Ms. Adler was descending was free of dirt or debris (R 109). Furthermore, no one else was walking on the staircase at the time of her fall, thus her view was not obstructed (R 94). Plaintiff never claimed that lighting conditions were inadequate. At her deposition, Ms. Adler attributed the cause of her fall to the "clump" and not to any other factor (R 176- 177). Similarly, the bill of particulars attributes the cause of the fall to a cracked, uneven and raised floor – and not to insufficient lighting (R 50). While Ms. Adler testified that she had noticed the "condition" previously, she did not know how long it had existed (R 107-108). Ms. Adler also admitted that she never reported the "condition" to the defendants, nor had anyone else reported or complained of the "clump" (R 117). In Encarnacion v. Tegford Realty LLC, 60 A.D.3d 581, 876 -21- N.Y.S.2d 375 (1st Dep't 2009), the "crater" which caused plaintiff to fall had been present on the step for at least two years. Relying on photographs of the condition, the court found that the depression in the step was not a trap or nuisance and was not actionable. Thus, an awareness or knowledge of a condition prior to the accident does not bar a court from finding that a defect was trivial as a matter of law. See, also, Guerriero v. Jand, 57 A.D.3d 365, 870 N.Y.S.2d 12 (1st Dep't 2008) (defendant granted dismissal in trip and fall on trivial defect on a step which plaintiff used several times a day); Fisher, supra, (plaintiff walked in the accident area on a "regular basis"). Immediately before tripping, plaintiff was looking forward, and was "probably looking down" (R 93). A similar fact pattern is described in Spiegel v. Vanguard Constr. and Dev. Co., 50 A.D.3d 387, 860 N.Y.S.2d 11 (1st Dep't 2008). Plaintiff there tripped over a one inch height differential between two adjoining areas. As in our case, plaintiff there was "looking at the subject area when he fell." Id. at 387. The court dismissed the complaint, finding that the condition was not a trap or snare as it did not have an edge, and it was not in any way "masked from view." Id. In Tesak v. Marine Midland Bank, 254 A.D.2d 717, 678 N.Y.S.2d 226 (4th Dep't 1998), plaintiff tripped over a sidewalk -22- defect. In rejecting the defendant's motion that the defect was trivial, the court ruled that as the condition was close to the door of the defendant's premises and that the plaintiff's attention was "drawn to the door, not to the sidewalk." Id. at 718. By contrast, Ms. Adler's attention was not drawn away from the step as she descended to the 4th floor. Rather, she admittedly was walking alone, looking forward and "probably looking down" at the time of the incident (R 93-94). Ms. Adler admitted that the stair was not cracked nor was it slippery (R 118). Plaintiff's affidavit asserting that the stair was "cracked" (R 275) is contradicted by her deposition testimony where she conceded that the stair was not cracked (R 118). An affidavit, such as the one submitted by Ms. Adler, submitted in opposition to a motion which presents feigned issues of fact designed to avoid the consequences of earlier deposition testimony is insufficient to defeat the motion. Carriero v. Nazario, 116 A.D.3d 818, 983 N.Y.S.2d 422 (2nd Dep't 2014). Accordingly, considering the nature of the "clump," as well as the time, place, and circumstances of the alleged injury, the defendants’ are entitled to dismissal. "The alleged defect did not, by reason of its location, adverse weather, lighting conditions, or other relevant circumstances, have any of the -23- characteristics of a trap or snare, and was too trivial to be actionable." Ramirez v. City of New York, 93 A.D.3d 833, 941 N.Y.S.2d 199 (2nd Dep't 2012). d. The Cases Cited By Plaintiff Are Distinguishable. Unlike The Facts Of The Cases Relied Upon By Plaintiff, The Condition Over Which Plaintiff Tripped Does Not Possess Sharp, Abrupt Or Irregular Edges Plaintiff devotes considerable effort in summarizing rulings from the appellate divisions where landowner's motions seeking dismissal on trivial defect grounds were denied. However, plaintiff fails to apply the facts of those rulings to the case at bar for the simple reason that none of the cases cited are relevant to this action. The authorities cited by plaintiff involve conditions that contain sharp, abrupt or irregular edges. In Dominguez v. OCG, IV, LLC, 82 A.D.3d 434,434, 918 N.Y.S.2d 406, 406 (1st Dep't 2011), the condition in question was "irregular, patched and worn." By contrast, in the case at bar, the Record indicates that there was no appreciable height differential between the small "clump" on the stair and the surrounding area (R 22). Plaintiff's reliance on Tineo v. Parkchester South Condominium, 304 A.D.2d 383, 759 N.Y.S.2d 9 (1st Dep't 2003) is similarly misplaced. There, plaintiff fell due to a broken blacktop on a walkway. The defect was 2 feet long, 2 feet wide and three quarters of an inch deep. In the case at bar, the -24- stair where plaintiff fell was not broken. Moreover, the ruler placed over the alleged accident location, as it appears on page 22 of the Record, demonstrates that there is no appreciable height differential between the "clump" and the rest of the stair.1 Nin v. Bernard, 257 A.D.2d 417, 683 N.Y.S.2d 237 (1st Dep't 1999) is similarly unhelpful for plaintiff. In that case, plaintiff fell over a missing tile which caused an irregular depression with sharp edges. The edge of the "clump" in this case is not sharp, but gradual, shallow and lacking any edges.2 Plaintiff also relies on Elliott v. E. 220th St. Realty Co., 1 A.D.3d 262, 767 N.Y.S.2d 426 (1st Dep't 2003). There, the edge of the defect was sharp and abrupt. By contrast, the pictures of the stair in our case do not depict any such sharpness or an abrupt edge. The facts in Argenio v. Metropolitan Transportation Authority, 277 A.D.2d 165, 716 N.Y.S.2d 657 (1st Dep't 2000) are 1 Plaintiff relies on Trusetta v. Wyassup-Laurel Glen Corp., 91 A.D.3d 632, 937 N.Y.S.2d 240 (2nd Dep't 2012). Plaintiff's brief there indicates that the accident was caused by "corroded" pieces of cement near a doorway entrance, similar to the facts of Tineo. 2012 WL 1565131 2 Another case cited in plaintiff's brief, Abreu v. New York City Housing Authority, 61 A.D.3d 420, 876 N.Y.S.2d 50 (1st Dep't 2009) is similar to Nin. Plaintiff's brief there describes the condition as an uneven, irregular- shaped and jagged crack located on sloped ramp. 2008 WL 8190119. Adamopoulos v. Liotti, 273 A.D.2d 260, 708 N.Y.S.2d 706 (2nd Dep't 2000), yet another case cited in plaintiff's brief, is inapposite as the condition described in the appellate briefs there is a "bolt hole" or "screw hole," 5/8 inch in diameter. While the conditions described in these cases are arguably tripping hazards, the same cannot be said about the "clump" causing Adler to trip. -25- also distinguishable. The alleged defect there was on a walkway in a crowded train station. That accident location was heavily traveled which made detection of the condition difficult. The accident location here, by contrast, was a staircase in the interior of an apartment building. Plaintiff admitted at her deposition that there were no witnesses to the accident and no one was present with her at the time of her fall (R 94). The photographs in Rivas v. Crotona Estates Housing Development Fund Co., Inc., 74 A.D.3d 541, 902 N.Y.S.2d 536 (1st Dep't 2010) depicted a missing portion of a triangular tile on the lobby floor. There is no such portion of the stair missing in our case. As described at length above, photographs of the "clump" here indicate that there is no appreciable height differential between that "clump" and the rest of the stair. Rivera v. 2300 X-tra Wholesalers, 239 A.D.2d 268, 658 N.Y.S.2d 264 (1st Dep't 1997), another case cited by plaintiff, involves a metal plate affixed to the floor of a grocery store. The abrupt height differential between the distinct surfaces presents facts far different than the smooth, shallow and miniscule condition at issue here. Plaintiff's reliance on Felix-Cortes v. City of New York, 54 A.D.3d 358, 863 N.Y.S.2d 72 (2nd Dep't 2008), involving an abrupt height differential between two sidewalk flags is unpersuasive for the same reason. The recent holding of Jangana v. Nicole Equities LLC, 127 -26- A.D.3d 458, 8 N.Y.S.3d 46 (1st Dep't 2015) is distinguishable as well. The defense expert in that case admitted that the mislaid carpet at issue there could move 3/8 of an inch upon application of 25 pounds of horizontal force. Ms. Adler has not alleged that movement on the concrete stair caused her to fall. Several of the cases relied upon by plaintiff provide no description of the defective condition, and are thus unhelpful in clarifying what sort of a trivial defect is considered a trap or snare. Gotay v. New York City Housing Auth., 127 A.D.3d 693, 7 N.Y.S.3d 311 (2nd Dep't 2015)(no description of condition); Ortiz v. 82-90 Broadway Realty Corp., 117 A.D.3d 1016, 986 N.Y.S.2d 133 (2nd Dep't 2014)(same); Gonzalez v. Club Monaco U.S., LLC, 95 A.D.3d 549, 943 N.Y.S.2d 109 (1st Dep't 2012) (same); Stachowski v. City of Yonkers, 294 A.D.2d 489, 742 N.Y.S.2d 568 (2nd Dep't 2002)(same). The above discussion demonstrates that each case cited by plaintiff is distinguishable. There is substantial support for the defendants' position that the subject stairway "clump" is not a trap, nuisance or snare, and the condition is not actionable. The photos of the accident location depict a stair in good condition and are conclusive evidence that the condition was a trivial defect. A case with analogous facts is Outlaw, supra. Defendants relied on this case in the court below and the Second -27- Department's decision cites this case as well. Nevertheless, plaintiff has opted to ignore Outlaw, not distinguishing it or addressing it any way. In Outlaw, plaintiff claimed that she slipped on a "patch" located on a stair. As is the case here, no measurements were taken. Photographs of the stair showed the "patch" to be small, worn and rectangular and the "defect" did not have any sharp edges and appeared to be shallow. This Court found the condition was a trivial defect and dismissed the complaint. In both cases, the accident was allegedly caused by a small and shallow "patch" or "clump" on a stair. Absent from both the "clump" in our case and the "patch" in Outlaw is any evidence of a sharp edge. Moreover, in both Outlaw and the present case, proof of the trivial defect is evident from photographs of the accident location. Further proof to defendants' right to dismissal here is evident in Cruz v. Deno's Wonder Wheel Park, 297 A.D.2d 653, 747 N.Y.S.2d 242 (2nd Dep't 2002). The complaint there was dismissed after the court considered the "dimensions and appearance" of the alleged defect and concluded that the condition possessed none of the characteristics of a trap or snare and was too trivial to be actionable. See, also, Madero v. Pizzagalli Const. Co., 62 A.D.3d 670, 878 N.Y.S.2d 434 (2nd Dep't 2009) (hardened concrete on floor, less than 1 inch high and less than 1 inch -28- wide is trivial and not actionable); Sulca v. Barry Hers Realty, Inc., 29 A.D.3d 779, 815 N.Y.S.2d 204 (2nd Dep't 2006) (raised metal strip on staircase that was raised ½ inch above the step was trivial defect and not actionable); Gaud v. Markham, 307 A.D.2d 845, 764 N.Y.S.2d 241 (1st Dep't 2003) (height differential of less than 1 inch between defective area and rest of landing was trivial and did not amount to a dangerous condition). Trincere is a relatively recent precedent of this Court. Plaintiff has failed to show that it is unworkable or otherwise merits reversal or modification. Moreover, the case law cited above demonstrates that the Appellate Divisions have been consistent in their application of Trincere. There is thus no conflict amongst the four departments that this Court needs to reconcile. Accordingly, it is evident that the supposed “defect” in this case - if it was a defect at all - was de minimus. The Appellate Division, Second Department correctly ruled that the small mass on the stair was a trivial defect, not possessing the characteristics of a trap or snare. The photographs and deposition testimony indicate that the "clump" complained of by plaintiff was trivial and therefore, not actionable. -29- CONCLUSION For all the foregoing reasons, the order of the Appellate Division, Second Department which granted defendants' motion for summary judgment, from which this appeal was taken, should be affirmed. Dated: Jericho, New York August 12, 2015 Respectfully submitted, McGAW, ALVENTOSA & ZAJAC Attorneys for Defendants-Respondents, QPI-VIII, LLC and VANTAGE MANAGEMENT SERVICES, LLC Two Jericho Plaza, Suite 202 Jericho, New York 11753-1681 (516) 822-8900 Our File No: NYAP-01829 By: _____________________ Joseph Horowitz Of Counsel Joseph Horowitz, Esq.