Kamps v New York City Tr. Auth., 2011 NY Slip Op 07691 [89 AD3d 421]

November 1, 2011

Appellate Division, First Department

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Wallace D. Gossett, Brooklyn (Lawrence A. Silver of counsel), for appellants.

Soren & Soren, Staten Island (Steven J. Soren of counsel),for respondents.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered February 25, 2010, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff Lisa Ann Duac Kamps fell and was injured as she stepped from a square concrete platform that abutted a subway exit stairwell at the street level. Although the platform matched the sidewalk in color, the photographic evidence shows that its perimeter was daubed with yellow paint, faded at the front edge, yet particularly visible at the left and right margins. The photographs also show that the platform ends are flush with the end of the subway enclosure and with the end of the handrail on the right side of the subway stairwell, indicating that it was part of the stairwell and not part of the sidewalk. In light of this evidence, which showed that the platform was not a dangerous trap that caused plaintiff’s fall, defendants met their prima facie burden of establishing entitlement to summary judgment ( see Remes v 513 W. 26th Realty, LLC , 73 AD3d 665 , 666 [2010]; Burke v Canyon Rd. Rest. , 60 AD3d 558 , 559 [2009]).

In opposition, plaintiffs failed to submit evidence sufficient to show that the platform area created optical confusion so as to defeat defendants’ prima facie showing ( compare Saretsky v 85 Kenmare Realty Corp ., 85 AD3d 89 , 92 [2011]; Chafoulias v 240 E. 55th St. Tenants Corp. , 141 AD2d 207, 210-212 [1988]). Concur—Saxe, J.P., Friedman, Acosta, DeGrasse and Abdus-Salaam, JJ..