author: Fahey, J.

text:
    [41 NE3d 766, 19 NYS3d 802]
    Leonard Hutchinson, Appellant, v Sheridan Hill House Corp., Respondent. Matvey Zelichenko, Appellant, v 301 Oriental Boulevard, LLC, Respondent. Maureen Adler, Appellant, v QPI-VIII LLC, et al., Respondents.
    Argued September 17, 2015;
    decided October 20, 2015

      POINTS OF COUNSEL

      Pollack, Pollack, Isaac & DeCicco, LLP, New York City {Brian J. Isaac of counsel) and Getz & Braverman, P.C. {Michael Braverman of counsel), for appellant in the first above-entitled action.
    I. A defect which is not readily visible, and constitutes a trap or snare which can cause a person to trip, is not trivial as a matter of law, even where it is small. (Loughran v City of New York, 298 NY 320; Pratt v Village of Seneca Falls, 295 NY 690; Lynch v City of Beacon, 295 NY 872; Dowd v City of Buffalo, 290 NY 895; Norbury v City of Buffalo., 246 NY 605; Wilson v Jaybro Realty & Dev. Co., 289 NY 410; Trincere v County of Suffolk, 90 NY2d 976; Walker v City of New York, 60 NY2d 557; Delaney v Philhern Realty Holding Corp., 280 NY 461; Taylor v New York City Tr. Auth., 48 NY2d 903.) II. When construed in a light most favorable to the plaintiff as the party opposing summary judgment, the record does not support defendant’s assertion that it lacked notice of the metal remnant that caused plaintiff’s accident as a matter of law; the defect existed for years prior to the accident, and was readily apparent, so that defendant’s agents’ failure to see it is inculpatory under the governing case law. (Gordon v American Museum of Natural History, 67 NY2d 836; Negri v Stop & Shop, 65 NY2d 625; Sanchez v State of New York, 99 NY2d 247; Weigand v United Traction Co., 221 NY 39; Blake v UTEC Constructors, 48 NY2d 875; Farrell v Prentice, 206 AD2d 799; Kirby v Montgomery Bros. & Co., 197 NY 27; Adlam v Konvalinka, 291 NY 40; Kumkumian v City of New York, 305 NY 167; Woloszynowski v New York Cent. R.R. Co., 254 NY 206.)

      Kaufman Dolowich & Voluck, LLP, Hackensack, New Jersey {Kevin J. ODonnell of counsel), for respondent in the first above-entitled action.
    I. The courts below properly ruled that defendant met its prima facie burden establishing that it lacked notice of the alleged defect which plaintiff failed to rebut. (Kraemer v K-Mart Corp., 226 AD2d 590; Gordon v American Museum of Natural History, 67 NY2d 836; Goldman v Waldbaum, Inc., 248 AD2d 436; Personius v Mann, 20 AD3d 616; Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500; Basso v Miller, 40 NY2d 233; Burko v Friedland, 62 AD3d 462; Arnold

      v New York City Hous. Auth., 296 AD2d 355; Hayden v Waldbaum, Inc., 63 AD3d 679; Denker v Century 21 Dept. Stores, LLC, 55 AD3d 527.) II. The alleged defect was trivial and non-actionable as a matter of law. (Trionfero v Vanderhorn, 6 AD3d 903; Trincere v County of Suffolk, 90 NY2d 976; Gaud v Markham, 307 AD2d 845; Burko v Friedland, 62 AD3d 462; Sokolovskaya v Zemnovitsch, 89 AD3d 918; Riley v City of New York, 50 AD3d 344; Taveras v City of New York, 59 AD3d 178; Schenpanski v Promise Deli, Inc., 88 AD3d 982; Milewski v Washington Mut., Inc., 88 AD3d 853; Meehan v David J. Hodder & Son, Inc., 13 AD3d 593.) III. The motion court and Appellate Division properly held that the report of plaintiff’s engineering expert was inadmissible and unreliable. (Grasso v Angerami, 79 NY2d 813; Kearse v New York City Tr. Auth., 16 AD3d 45; Stuart v Ellis Hosp., 198 AD2d 559; Papineau v Powell, 251 AD2d 924; Chase v Cayuga Med. Ctr. at Ithaca, 2 AD3d 990; Figueroa v Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210; Burko v Friedland, 62 AD3d 462; Young v Ai Guo Chen, 294 AD2d 430; Kruimer v National Cleaning Contrs., 256 AD2d 1; Vazquez v JRG Realty Corp., 81 AD3d 555.)

      Wingate, Russotti, Shapiro & Halperin, LLP, New York City CDavid M. Schwarz of counsel), for appellant in the second above-entitled action.
    I. The Appellate Division, Second Department, committed an error of law when it determined issues of fact rather than determining the existence of issues of fact. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Trincere v County of Suffolk, 90 NY2d 976; Glenbriar Co. v Lipsman, 5 NY3d 388; Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1; Grosskopf v 8320 Parkway Towers Corp., 88 AD3d 765; Basso v Miller, 40 NY2d 233; Puma v New York City Tr. Auth., 55 AD3d 585; Morehouse v Matthews, 2 NY 514.) II. The trivial defect doctrine should not be applied to indoor private property to the extent that it has been. (Terry v Village of Perry, 199 NY 79; Trincere v County of Suffolk, 90 NY2d 976; Peralta v Henriquez, 100 NY2d 139.)

      Gannon, Rosenfarb, Balletti & Drossman, New York City {Lisa L. Gokhulsingh of counsel), for respondent in the second above-entitled action.
    A dangerous condition did not exist at the building. (Solomon v City of New York, 66 NY2d 1026; Basso v Miller, 40 NY2d 233; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Putnam v Stout, 38 NY2d 607; Arnold v New York City Hous. Auth., 296 AD2d 355; Moody v Woolworth Co., 288 AD2d 446; Kotsakos v Tsirigotis, 28 AD3d 426; Mokszki v Pratt, 13 AD3d 709; Ianotta v Tishman Speyer Props., Inc., 46 AD3d 297; Mochen v State of New York, 57 AD2d 719.)

      Margaret G. Klein, Defense Association of New York, Inc. (Andrew Zajac, Dawn C. DeSimone, Roña L. Platt and Jonathan T. Uejio of counsel), for Defense Association of New York, Inc., amicus curiae, in the second above-entitled action.
    Plaintiff’s attempt to limit the trivial defect doctrine to open-air areas owned by municipalities should be rejected. (Trincere v County of Suffolk, 90 NY2d 976; Guerrieri v Summa, 193 AD2d 647; Heeney v Topping, 13 NY2d 1049; Doerr v Goldsmith, 25 NY3d 1114; Loughran v City of New York, 298 NY 320; Beltz v City of Yonkers, 148 NY 67; Gastel v City of New York, 194 NY 15; Terry v Village of Perry, 199 NY 79; Aguayo v New York City Hous. Auth., 71 AD3d 926; Peralta v Henriquez, 100 NY2d 139.)

      Law Offices ofVel Belushin, PC., Brooklyn (Georgette Hamboussi of counsel), for appellant in the third above-entitled action. I.
    The Second Department improperly usurped the jury province when it determined based on its review of photographs alone that the defect was trivial as a matter of law. (Kosson v Algaze, 84 NY2d 1019; Vega v Restani Constr. Corp., 18 NY3d 499; Matter of Cuttitto Family Trust, 10 AD3d 656; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Roth v Barreto, 289 AD2d 557; O’Neill v Town of Fishkill, 134 AD2d 487; S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Surdo v Albany Collision Supply, Inc., 8 AD3d 655; Glover v City of New York, 298 AD2d 428; Speller v Sears, Roebuck & Co., 100 NY2d 38.) II. The Second Department erred when it failed, after finding based on a bare conclusory assertion that the defect was trivial, to consider whether respondents met their burden to show that they neither created the defective condition nor had actual or constructive notice of its existence. (Johnson v Culinary Inst. of Am., 95 AD3d 1077; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598; Lehman v North Greenwich Landscaping, LLC, 16 NY3d 747; Weller v Colleges of the Senecas, 217 AD2d 280; Joachim v 1824 Church Ave., Inc., 12 AD3d 409; Van Steenburg v Great Atl. & Pac. Tea Co., 235 AD2d 1001; Porco v Marshalls Dept. Stores, 30 AD3d 284; Sledge v Apple Maintenance & Servs., Inc., 23 Misc 3d 1114[U], 2009 NY Slip Op 50774[U]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851.)

      McGaw, Alventosa & Zajac, Jericho (Joseph Horowitz of counsel), for respondents in the third above-entitled action.
    The alleged defect on the stair was trivial in nature and had none of the characteristics of a trap or snare. (Trincere v County of Suffolk, 90 NY2d 976; Copley v Town of Riverhead, 70 AD3d 623; Guerrieri v Summa, 193 AB2d 647; Heeney v Topping, 13 NY2d 1049; Schenpanski v Promise Deli, Inc., 88 AD3d 982; DiNapoli v Huntington Hosp., 303 AD2d 359; Marinaccio v LeChambord Rest., 246 AD2d 514; Leon v Alcor Assoc., L.P., 96 AD3d 635; Fisher v JRMR Realty Corp., 63 AD3d 677; Maloid v New York State Elec. & Gas Corp., 257 AD2d 712.)
   OPINION OF THE COURT

Fahey, J.

These cases teach that it is usually more difficult to define what is trivial than what is significant. The common factual and procedural thread among the three appeals before us is that an individual tripped on a defect in a sidewalk or stairway, and was injured, but was foreclosed from going to trial on the ground that the defect was characterized as too trivial to be actionable. We hold that the Appellate Division erred in dismissing the complaint in two of the three cases.

L

On April 23, 2009, plaintiff Leonard Hutchinson was walking on a concrete sidewalk in the Bronx when his right foot “caught” on a metal object protruding from the sidewalk and he fell, sustaining injuries. Hutchinson commenced this personal injury action against Sheridan Hill House Corp. The sidewalk where Hutchinson tripped abuts a building owned by Sheridan, which is responsible for maintaining the sidewalk in a reasonably safe condition under Administrative Code of the City of New York § 7-210 (a).

Discovery ensued. Hutchinson was deposed, along with a housing development director associated with Sheridan and two of its porters. Testimony was given that the sidewalk had been replaced in the summer of 2007. For his part, Hutchinson described the metal object as being “screwed on in the concrete” and gave rough estimates of its dimensions.

An employee of Sheridan’s counsel visited the sidewalk in December 2010 and photographed and measured the metal object. He concluded that the object, cylindrical in shape, projected “between one eighth of an inch . . . and one quarter of an inch” above the sidewalk and was “approximately five eighths of an inch” in diameter.

Sheridan moved for summary judgment dismissing the complaint, asserting that the defect was trivial in nature and hence nonactionable and that Sheridan did not create, or have actual or constructive notice of, the defect. Sheridan submitted, among other documents, an affidavit of the law firm employee who had photographed the metal protrusion, giving his measurements; the photographs; the deposition testimony; and the engineer’s report. In response, Hutchinson contended that there are issues of fact regarding whether the metal object created a hazard in the nature of a trap or snare and whether Sheridan had constructive notice of its existence.

Supreme Court granted summary judgment in favor of Sheridan on the ground that it lacked notice of the defect (2012 NY Slip Op 33804[U] [2012]). The Appellate Division affirmed, holding that Sheridan had demonstrated that it did not have notice of the defect and, in addition, that the metal object’s “minor height differential alone is insufficient to establish the existence of a dangerous or defective condition” (110 AD3d 552, 553 [1st Dept 2013]).

Two Justices dissented, reminding the majority that “ ‘there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable’” (id. at 554 [Acosta, J.P., and Saxe, J., dissenting], quoting Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). Moreover, the dissenters would have held that “an issue of fact remains as to whether the protruding piece of metal may be characterized as a trap or a snare such as could, without warning, snag a passerby’s shoe” (110 AD3d at 556 [Acosta, J.P., and Saxe, J., dissenting]).

Hutchinson appeals pursuant to CPLR 5601 (a). We affirm.

IL

On May 2, 2010, plaintiff Matvey Zelichenko fell while walking down a staircase in the lobby of a residential building in Brooklyn he was visiting for the first time. The staircase has five risers or vertical elements. It has four step treads, made of terrazzo, 12 inches in horizontal depth, each with a one-inch nosing that projects over the riser below. There are handrails on each side, and Zelichenko made use of one.

On the second step tread from the bottom, Zelichenko’s right leg “got caught” when he stepped on a part of the nosing where there was a missing piece or “chip.” His leg twisted and he fell, with resulting injuries. Zelichenko commenced this personal injury action against 301 Oriental Boulevard, LLC, the owner of the building.

During discovery, Zelichenko and the superintendent of the building gave deposition testimony. Zelichenko identified several photographs as fairly and accurately depicting the stairway and, in particular, the area of the missing “chip.” In one such photograph, a shoe-clad foot is shown on the step tread in question, next to an indentation in the nosing of the step; the toe of the shoe projects over the nosing.

301 Oriental moved for summary judgment dismissing the complaint, contending that the alleged defect in the step was trivial and nonactionable as a matter of law and that it was not on notice of the defect. 301 Oriental relied on an affidavit of an engineering consultant, Jeffrey J. Schwalje, who had inspected, measured, and photographed the staircase in May 2011; the photographs; and the deposition testimony.

Schwalje measured the dimensions of the missing “chip” as 3.25 inches in width and one-half inch in depth. Schwalje stated that the chipped step tread in question “did not present a tripping or slipping hazard. The small chip in the nosing is forward of a person’s foot contact area and would be safely negotiated. There was more than sufficient space behind the chip for an individual to safely plant his/her foot.” He further opined that “[a] person descending the stairway would not bear any weight on the chipped space or any other part of the step edge in the subject step tread unless his/her foot completely overstepped the tread.”

Zelichenko opposed the motion, relying on the photographs of the staircase and an affidavit of another engineer, Stuart K. Sokoloff. With regard to the size of the “chip,” Sokoloff agreed with Schwalje’s assessment of the width of the “chip” but, based on the photographs, he concluded that the depth of the missing area was one inch in places.

Sokoloff relied on a monograph entitled “The Staircase— Studies of Hazards, Falls and Safer Design” by architecture professor John Templen According to Sokoloff, Professor Templer, after explaining the physical processes whereby a human being walks down stairs, “states that one of the factors that may cause a fall is a broken tread” on a stairway, because “[w]hen our gait on stairs is disrupted or altered we can lose our balance or stumble especially when a defect is unsuspected, unknown, unanticipated and unexpected.” Sokoloff added that “[i]t is necessary that all stair tread[s] be uniform without missing sections to support a person descending a stair in order for [the] person to maintain . . . balance when negotiating the steps.”

Sokoloff criticized Schwalje’s assertion that there was more than enough space behind the chip for an individual to place his or her foot. Citing Professor Templer, Sokoloff opined that “the foot can make contact with the end of the nosing.” Sokoloff explained the process as follows:

“As the other foot moves down the stairs, the foot currently in contact with the tip of the tread rolls forward until that second foot contacts the tread/ step below. If a portion of the tip/nosing is missing during the stepping process . . . the contact area[ ] of the front of [the] foot is compromised/reduced to an extent that there would be insufficient tread area to support the ball/front of [the] foot with full body weight on it, and the foot could roll due to lack of support. This explains the mechanism of the plaintiffs fall.”

Supreme Court denied 301 Oriental’s motion, ruling that issues of fact existed as to actual or constructive notice and as to whether the alleged defect was trivial as a matter of law. The Appellate Division reversed Supreme Court’s order and granted 301 Oriental’s motion.

The Appellate Division stated that

“[t]he evidence revealed that the alleged defect consisted of a chip measuring about 3.25 inches wide and about .5 inch deep, located almost entirely on the edge of the second to last step from the bottom, and not on the walking surface. Upon an examination of all of the facts presented, we find that the alleged defect was trivial, did not possess the characteristics of a trap or nuisance, and, therefore, was not actionable” (117 AD3d 1038, 1040 [2d Dept 2014]).

We granted Zelichenko leave to appeal (24 NY3d 904 [2014]) and now reverse.

m.

On March 30, 2010, plaintiff Maureen Adler was injured in a fall on the interior staircase of the apartment building where she lived. As she recalled in her deposition testimony, she was walking down the stairs when her right foot “got caught” on “a big clump in the middle of the stair” — a protrusion of some sort in a step tread — which had “been painted over.” Adler commenced a personal injury action against QPI-VIII LLC and Vantage Management Services, LLC, the owner and manager of the building.

Adler’s counsel photographed the protrusion in the step, and at her deposition Adler acknowledged that the photographs fairly and accurately depicted the stairway and the “clump.” Adler testified that the stairway was illuminated by a 60-watt light bulb, that she was “[p]robably looking down” as she descended the stairs, that she did not recall any dirt or debris on the stairs, and that they were not slippery or cracked. She explained that she was very familiar with the stairway and in fact had seen the “clump” before on previous occasions.

The building superintendent testified that he had not noticed any uneven surface on the stairs prior to Adler’s accident nor received any complaints about such. He stated that the stairs had been painted some “three or four years before” the date of the accident.

Defendants moved for summary judgment dismissing the complaint, asserting that the alleged defect was trivial in nature and hence nonactionable and that they had not created the defect and did not have actual or constructive notice of its existence. They relied on Adler’s photographs as well as the deposition transcripts. Notably, defendants did not produce any measurements or other evidence of the dimensions of the “clump.”

Supreme Court denied the motion, ruling that defendants had failed to establish as a matter of law that they neither created the alleged defect nor had actual or constructive notice of it, or that the defect was trivial. The Appellate Division reversed and granted the motion, ruling that “[t]he 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 of fact” (124 AD3d 567, 568-569 [2d Dept 2015] [citations omitted]). The Appellate Division did not pass on the issue of notice. We granted Adler leave to appeal (25 NY3d 903 [2015]) and now reverse.

IV.

In Trincere v County of Suffolk (90 NY2d 976 [1997]), this Court held that “there is no 'minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” (id. at 977), and therefore that granting summary judgment to a defendant “based exclusively on the dimension [s] of the . . . defect is unacceptable” (id. at 977-978). Plaintiff Trincere tripped over a concrete paving slab, raised about a half inch in relation to the surrounding slabs in a plaza, and the lower courts dismissed her complaint, ruling the defect trivial as a matter of law. We held that a court must consider “all the facts and circumstances presented” (id. at 977) before concluding that no issue of fact exists, and emphasized that these factors will include, but should not be limited to, “the dimension[s] of the defect at issue” (id.). For this reason, we noted that “whether a dangerous or defective condition exists on the property of another so as to create liability ... is generally a question of fact for the jury” (id. [internal quotation marks omitted]). Nevertheless, we noted that the Appellate Division had in fact considered all “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” (Trincere, 90 NY2d at 978 [internal quotation marks omitted]), and we concluded that it had properly ruled that no issue of fact existed (id.).

Trincere thus recognizes the doctrine that a defect alleged to have caused injury to a pedestrian may be trivial as a matter of law, but requires a holding of triviality to be based on all the specific facts and circumstances of the case, not size alone. In our opinion, we cited Guerrieri v Summa (193 AD2d 647 [2d Dept 1993]), which expressed the trivial defect doctrine as the principle that a defendant “ ‘may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection’ ” (id. at 647, quoting Liebl v Metropolitan Jockey Club, 10 AD2d 1006, 1006 [2d Dept 1960], rearg denied 11 AD2d 946 [2d Dept 1960]; see also e.g. Trionfero v Vanderhorn, 6 AD3d 903, 903-904 [3d Dept 2004]; Squires v County of Orleans, 284 AD2d 990, 990 [4th Dept 2001]; Morales v Riverbay Corp., 226 AD2d 271, 271 [1st Dept 1996]). Trincere and the line of cases in which it stands establish the principle that a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it “unreasonably imperil[s] the safety of” a pedestrian (Wilson v Jaybro Realty & Dev. Co., 289 NY 410, 412 [1943]).

The repetition of the phrase “not constituting a trap” in many Appellate Division opinions should not be taken to limit the means by which a plaintiff may demonstrate a question of fact concerning the hazard posed by a physically small defect. Liability does not “turn[ ] upon whether the hole or depression, causing the pedestrian to fall, . . . constitutes ‘a trap’ ” (Loughran v City of New York, 298 NY 320, 321-322 [1948]). The case law provides numerous examples of factors that may render a physically small defect actionable, including a jagged edge (see e.g. Lupa v City of Oswego, 117 AD3d 1418, 1419 [4th Dept 2014]; Jacobsen v Krumholz, 41 AD3d 128, 128-129 [1st Dept 2007]); a rough, irregular surface (see e.g. Tese-Milner v 30 E. 85th St. Co., 60 AD3d 458, 458 [1st Dept 2009]); the presence of other defects in the vicinity (see e.g. Young v City of New York, 250 AD2d 383, 384 [1st Dept 1998]); poor lighting (see e.g. McKenzie v Crossroads Arena, 291 AD2d 860, 860-861 [4th Dept 2002], lv dismissed 98 NY2d 647 [2002]); or a location — such as a parking lot, premises entrance/exit, or heavily traveled walkway — where pedestrians are naturally distracted from looking down at their feet (see e.g. Brenner v Herricks Union Free Sch. Dist., 106 AD3d 766, 767 [2d Dept 2013]; Wilson v Time Warner Cable, 6 AD3d 801, 802 [3d Dept 2004]; George v New York City Tr. Auth., 306 AD2d 160, 161 [1st Dept 2003]; Glickman v City of New York, 297 AD2d 220, 221 [1st Dept 2002]; Argenio v Metropolitan Transp. Auth., 277 AD2d 165, 166 [1st Dept 2000], rearg denied 2001 NY App Div LEXIS 1472 [1st Dept 2001]; Jacobsen, 41 AD3d at 128-129; Tesak v Marine Midland Bank, 254 AD2d 717, 718 [4th Dept 1998]).

Our survey of such cases indicates that the lower courts, appropriately, find physically small defects to be actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot. Attention to the specific circumstances is always required and undue or exclusive focus on whether a defect is a “trap” or “snare” is not in keeping with Loughran and Trincere.

Finally, the trivial defect doctrine is best understood with our well-established summary judgment standards in mind. In a summary judgment motion, the movant must make a prima facie showing of entitlement to judgment as a matter of law before the burden shifts to the party opposing the motion to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact.

V

We now apply these principles to the cases before us on appeal.

In Hutchinson, defendant Sheridan met its burden of making a prima facie showing that the cylindrical projection was trivial as a matter of law by producing measurements indicating that it was only about one quarter of an inch in height and about five eighths of an inch in diameter, together with evidence of the surrounding circumstances. The dimensions are set out in the record on appeal, which contains photographs showing ruler measurements of the object.

Plaintiff Hutchinson, seeking to show a triable issue of fact concerning features of the defect that would magnify the hazard it presents, asserts that the object had an abrupt edge, was irregular in shape, and was firmly inserted into the sidewalk, so that, in the words of the dissenting Justices at the Appellate Division, it “could, without warning, snag a passerby’s shoe” (110 AD3d at 556 [Acosta, J.P., and Saxe, J., dissenting]). Hutchinson also suggests that he was not required to look down at his feet while walking along the sidewalk.

The characteristics enumerated by Hutchinson — the abruptness of the projecting edge, the alleged irregularity of its shape, and its rigidity and firm insertion into the sidewalk — are not dispositive, being true of many contours in a sidewalk. Moreover, contrary to the assertions of Hutchinson and the Appellate Division dissenters, the test established by the case law in New York is not whether a defect is capable of catching a pedestrian’s shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.

Here, the metal object that Hutchinson tripped over, protruding only about a quarter of an inch above the sidewalk, was in a well-illuminated location approximately in the middle of the sidewalk and in a place where a pedestrian would not be obliged by crowds or physical surroundings to look only ahead. The object stood alone and was not hidden or covered in any way so as to make it difficult to see or to identify as a hazard. Its edge was not jagged and the surrounding surface was not uneven. Taking into account all the facts and circumstances presented, including but not limited to the dimensions of the metal object, we conclude that the defect was trivial as a matter of law.

The Appellate Division properly ruled that the defect was not actionable. There is accordingly no need for us to address Sheridan’s alternative contention based on lack of actual or constructive notice.

VL

Plaintiff Zelichenko argues that the trivial defect doctrine should be limited to municipal defendants or to cases involving accidents on sidewalks, and does not apply to his fall on an interior staircase. He asserts that absent the trivial defect doctrine, a municipality would be burdened with inspecting, maintaining and repairing miles of sidewalk so as to rid public paths of every slight defect resulting from weathering and from expansion and contraction with changes in temperature. By contrast, Zelichenko points out, this policy consideration does not apply to owners of buildings, who may reasonably be required to ensure that interior walkways and staircases are safe. Moreover, he argues, expectations differ in varying locations and a person typically expects indoor surfaces to be more uniform and level, because they are not subject to so many changes due to the forces of nature.

While it is true that pedestrian expectations differ between exterior and interior walking surfaces, and the trivial defect doctrine may have salutary consequences for municipalities, we do not accept Zelichenko’s invitation to reframe the law of personal injury liability so radically. The trivial defect doctrine is grounded on a fundamental principle that spans all types of liability: that if a “defect is so slight that no careful or prudent [person] would reasonably anticipate any danger from its existence,” and yet an accident occurs that is traceable to the defect, there is no liability (Beltz v City of Yonkers, 148 NY 67, 70 [1895]). This principle is equally applicable to private landlords and municipalities. Moreover, the trivial defect doctrine has been applied to defects on stairways, including those that are inside privately owned buildings (see e.g. Cassizzi v Fordham Univ., 101 AD3d 645, 646 [1st Dept 2012]; Sawicki v Conklin Realty Co., LLC, 94 AD3d 1083, 1083 [2d Dept 2012]; Vachon v State of New York, 286 AD2d 528, 530 [3d Dept 2001]; State v Fredonia Cent. School Dist., 256 AD2d 1210, 1210-1211 [4th Dept 1998]).

Zelichenko’s further contentions, however, convince us that reversal is required. The Appellate Division in Zelichenko, in examining “all of the facts presented” (117 AD3d at 1040) as required by Trincere, concluded as a matter of law that the defect was trivial, stating in particular that the “chip” was “located almost entirely on the edge of the . . . step . . . and not on the walking surface” (id.). This was error.

In particular, viewing the evidence in the light most favorable to Zelichenko, as we must in this procedural posture, we conclude that the Appellate Division erroneously decided that the “chip” was not on the walking surface of a step tread. Zelichenko’s expert, Sokoloff, citing Professor Templer, explained that, when descending a stairway, a human “foot can make contact with the end of the nosing” so that the walking surface of a step tread extends to the nosing. Indeed, in the photograph in the record of a foot positioned next to the “chip,” the toe of the shoe extends across and over the nosing in a way that does not appear forced or unnatural.

Moreover, even if there were room on the step for a person to place his or her foot behind the defect, it would not follow as a matter of law that the defect is “not on the walking surface.” That a person may place his or her foot on a step in such a way as to avoid the nosing does not imply that every person will always do so. What counts here is not whether a person could avoid the defect, but whether a person would invariably avoid the defect while walking in a manner typical of human beings descending stairs. A defect underneath a handrail (see Puma, 55 AD3d at 585-586) will presumably not be on the walking surface, but a defect in a place where a person may in the normal course of events place the weight of his or her body, resting on a foot, may be on the walking surface.

Here, the step tread had a missing piece, of irregular shape, 3.25 inches in width and at least one-half inch in depth, on the nosing of the step, where a person might step, and the record contains an expert affidavit explaining the necessity for step treads to be of uniform horizontal depth. After examining all the pertinent facts and circumstances of this case, as we are required to, we conclude that a material triable issue of fact exists regarding whether the defect was trivial.

For these reasons, the Appellate Division erred in concluding that the defect was nonactionable. Moreover, we agree with Supreme Court that an issue of fact exists as to actual or constructive notice (see generally Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Taylor v New York City Tr. Auth., 48 NY2d 903, 904 [1979]). Therefore, the Appellate Division erred in granting 301 Oriental’s summary judgment motion.

VII.

In Adler, the summary judgment record, which included deposition testimony and indistinct photographs, but no measurements of the alleged defect, is inconclusive. Without evidence of the dimensions of the “clump,” it is not possible to determine whether it is the kind of physically small defect to which the trivial defect doctrine applies. We hold that defendants failed to meet their initial burden of making a prima facie showing of entitlement to judgment as a matter of law. The burden therefore did not shift to Adler to establish the existence of a material triable issue of fact.

We do not imply that there are no cases in which a fact-finding court could examine photographs and justifiably infer from them as a matter of law that an elevation or depression or other defect is so slight as to be trivial as a matter of law (see e.g. Outlaw v Citibank, N.A., 35 AD3d 564, 565 [2d Dept 2006] [“The photographs of the stair introduced into evidence by the plaintiff show the patch to be a small, worn, rectangular-shaped area on the metal safety treads at the edge of the step. It has no sharp edges and appears shallow”]; Julian v Sementelli, 234 AD2d 866, 867 [3d Dept 1996] [“Our examination of those photographs shows only a slight height differential between two slabs of the sidewalk”]). Photographs that are acknowledged to “fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable” (Schenpanski v Promise Deli, Inc., 88 AD3d 982, 984 [2d Dept 2011]). But we hold that the photographs in this case, whether alone or combined with the deposition testimony, cannot support a ruling of triviality as a matter of law.

For this reason, we agree with Adler’s principal argument that the Appellate Division erred in holding that the alleged defect was trivial. Contrary to Adler’s subsidiary contention, however, the Appellate Division committed no error in declining to rule on the notice issue, after it ruled in defendants’ favor on another basis. A defendant moving for summary judgment in a slip-and-fall case is not obliged to demonstrate lack of notice if it can prevail on another ground (see generally Bachrach v Waldbaum, Inc., 261 AD2d 426, 426 [2d Dept 1999]; Colt v Great Atl. & Pac. Tea Co., 209 AD2d 294, 294-295 [1st Dept 1994]).

Nevertheless, because we rule against defendants on their other ground, we must consider the notice issue, and we hold that defendants failed to meet their burden to make a prima facie showing that they neither created nor had notice of the defect as a matter of law. The deposition testimony left significant doubt as to who painted the staircase, when it was painted, and whether the “clump” was “visible and apparent and . . . exist [ed] for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it” (Gordon, 67 NY2d at 837).

VIII.

Trincere stands for the proposition that a defendant cannot use the trivial defect doctrine to prevail on a summary judgment motion solely on the basis of the dimensions of an alleged defect, and that the reviewing court is obliged to consider all the facts and circumstances presented when it decides the motion. Summary judgment should not be granted to a defendant on the basis of “a mechanistic disposition of a case based exclusively on the dimension[s] of the . . . defect” (Trincere, 90 NY2d at 977-978), and neither should summary judgment be granted in a case in which the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive (see section VII, discussing Adler). Moreover, in deciding whether a defendant has met its burden of showing prima facie triviality, a court must — except in unusual circumstances not present here — avoid interjecting the question whether the plaintiff might have avoided the accident simply by placing his feet elsewhere (see section VI, discussing Zelichenko). In sum, there are no shortcuts to summary judgment in a slip-and-fall case.

Accordingly, in Hutchinson, the order of the Appellate Division should be affirmed, with costs; in Zelichenko, the order of the Appellate Division should be reversed, with costs, and defendant’s motion for summary judgment denied; and, in Adler, the order of the Appellate Division should be reversed, with costs, and defendants’ motion for summary judgment denied.

In Hutchinson v Sheridan Hill House Corp.: Order affirmed, with costs.

Opinion by Judge Fahey. Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam and Stein concur.

In Zelichenko v 301 Oriental Blvd., LLC: Order reversed, with costs, and defendant’s motion for summary judgment denied.

Opinion by Judge Fahey. Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam and Stein concur.

In Adler v QPI-VIII LLC: Order reversed, with costs, and defendants’ motion for summary judgment denied.

Opinion by Judge Fahey. Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam and Stein concur.

      . A consulting engineer retained by Hutchinson’s counsel visited the accident site in May 2011, by which time the protruding object had been removed. In an unsworn report submitted by Hutchinson as an expert witness disclosure, the engineer stated, without explanation, his opinion that the diameter of the metal object had been about 1.25 inches.

      . In dicta, Supreme Court found the engineer’s report admissible under Kearse v New York City Tr. Auth. (16 AD3d 45, 47 n 1 [2d Dept 2005]), but inconclusive, and did not credit his estimate of the object’s diameter.

      . Adler herself did not offer a measurement of the protrusion at any stage of this action.

      . The Second Department has attached significance to whether a defect was on “the walking surface” of a stairway in a number of recent cases. In Maciaszek v Sloninski (105 AD3d 1012, 1013 [2d Dept 2013]), the Second Department held a hole in a staircase to be trivial as a matter of law on the basis of circumstances that included that the hole “was one inch in diameter, half an inch deep, and located at the edge of the step.” In Grosskopf v 8320 Parkway Towers Corp. (88 AD3d 765, 766 [2d Dept 2011]), the Court held that the alleged defect “consisted of a chip measuring less than two inches wide, located almost entirely on the nosing of the . . . step . . . and not on the walking surface,” and concluded that the “chip” was trivial as a matter of law. In an earlier, distinguishable case, Puma v New York City Tr. Auth. (55 AD3d 585 [2d Dept 2008]), the Second Department held that there was no defective or dangerous condition because the plaintiff’s fall in a subway station occurred when his foot became caught in a drainage canal “located at the extreme edge of the stairway tread, underneath the handrail” (id. at 585-586), rather than on a walking surface. We take no position on whether these cases were correctly decided.


source: Caselaw Access Project

author: Pigott, J. Fahey, J.

license: Public Domain

text:
    [41 NE3d 778, 19 NYS3d 814]
    The People of the State of New York, Respondent, v Jennifer Jorgensen, Appellant.
    Argued September 8, 2015;
    decided October 22, 2015

      POINTS OF COUNSEL

      Mischel & Horn, P.C., New York City (Richard E. Mischel of counsel), for appellant.
    I. Defendant-appellant was convicted of a crime that was not legally possible for her to commit, under New York law. (People v Boyd, 12 NY3d 390; People v Finch, 23 NY3d 408; People v Bradner, 107 NY 1; People v Correa, 15 NY3d 213; People v Nicometi, 12 NY2d 428; People v Lopez, 45 AD3d 493; People v Jackson, 49 AD2d 680; People v Campbell, 72 NY2d 602; People v Acevedo, 32 NY2d 807; People v Feingold, 7 NY3d 288.) II. The evidence was not legally sufficient to establish defendant-appellant’s guilt of manslaughter in the second degree. (People v Ribowsky, 77 NY2d 284; People v Finch, 23 NY3d 408; People v Contes, 60 NY2d 620; People v Rayam, 94 NY2d 557; People v Yarrell, 75 NY2d 828; People v Cabrera, 10 NY3d 370.) III. Defendant-appellant’s federally and state guaranteed rights to a fair trial and due process were violated by the admission at trial of evidence pertaining to her legally prescribed medications and the prosecutor’s exploitation of that evidence on summation. (People v Moye, 52 AD3d 1, 12 NY3d 743; United States v Brown, 597 F3d 399; United States v Cole, 537 F3d 923; United States v Stevens, 83 F3d 60; United States v Jemal, 26 F3d 1267; People v Resek, 3 NY3d 385; People v Calvano, 30 NY2d 199; People v Arafet, 13 NY3d 460; People v Allweiss, 48 NY2d 40; People v Zackowitz, 254 NY 192.) IV. The prosecutor’s summation comments prejudiced defendant-appellant’s rights to a fair trial. (People v Zimmer, 51 NY2d 390; Berger v United States, 295 US 78; People v Steadman, 82 NY2d 1; People v Huntsman, 96 AD3d 1387, 20 NY3d 1099; People v Santorelli, 95 NY2d 412; People v Ashwal, 39 NY2d 105; People v Riback, 13 NY3d 416; People v Calabria, 94 NY2d 519; People v Grice, 100 AD2d 419; People v Steinhardt, 9 NY2d 267.) V. The sentence imposed was illegal. (People v Feingold, 7 NY3d 288; Brandes Meat Corp. v Cromer, 146 AD2d 666; United States v Watts, 519 US 148; People v Schrader, 23 AD3d 585; People v Black, 33 AD3d 338; People v Zowaski, 31 MisC 3d 242.)

      Thomas J. Spota, District Attorney, Riverhead (Karla Lato of counsel), for respondent.
    I. Jennifer Jorgensen can be guilty of reckless manslaughter with regard to the death of her baby. (People v Williams, 19 NY3d 100; People v Finnegan, 85 NY2d 53; People v Quinto, 77 AD3d 76; Tompkins v Hunter, 149 NY 117; Matter of Roballo v Smith, 63 NY2d 485; People v Hall, 158 AD2d 69; People v Hardy, 30 Misc 3d 967; Roe v Wade, 410 US 113; Woods v Lancet, 303 NY 349; Matter of Gloria C. v William C., 124 Misc 2d 313.) II. The evidence presented at trial was legally sufficient to support Jennifer Jorgensen’s conviction. (People v Hines, 97 NY2d 56; People v Mendez, 34 AD3d 697; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Cintron, 95 NY2d 329; People v Tejeda, 73 NY2d 958; People v Rossey, 89 NY2d 970; People v Malizia, 62 NY2d 755; People v Danielson, 9 NY3d 342; People v Miller, 286 AD2d 981.) III. The trial court did not abuse its discretion when it admitted evidence of Jennifer Jorgensen’s prescription drug usage. Jennifer Jorgensen was not denied her right to a fair trial. (People v Lewis, 69 NY2d 321; People v Scarola, 71 NY2d 769; People v Brown, 97 NY2d 500; People v Arafet, 13 NY3d 460; People v Crimmins, 36 NY2d 230.) IV. The prosecutor’s summation was proper and did not violate Jennifer Jorgensen’s right to a fair trial. (People v Romero, 7 NY3d 911; People v LaValle, 3 NY3d 88; People v Harris, 98 NY2d 452; People v Gray, 86 NY2d 10; People v Gonzalez, 83 AD3d 1093; People v Tonge, 93 NY2d 838; People v Tardbania, 72 NY2d 852; People v Scoon, 303 AD2d 525; People v Ashwal, 39 NY2d 105; People v Halm, 81 NY2d 819.) V. This court is precluded from reviewing the imposed sentence. (People v Cona, 49 NY2d 26; People v Nieves, 2 NY3d 310; People v Hurley, 75 NY2d 887; People v Samms, 95 NY2d 52.)

      Lynn M. Paltrow, National Advocates for Pregnant Women, New York City (Farah Diaz-Tello of counsel), for National Advocates for Pregnant Women and others, amici curiae.
    I. New York law does not permit prosecution of women in relation to their pregnancy outcomes. (People v Allen, 92 NY2d 378; Matter of Scotto v Dinkins, 85 NY2d 209; People v Quinto, 77 AD3d 76; Matter of Brown v Wing, 93 NY2d 517; People v Ditta, 52 NY2d 657; People v Wood, 8 NY2d 48; People v Joseph, 130 Misc 2d 377; People v Hall, 158 AD2d 69; Byrn v New York City Health & Hosps. Corp., 31 NY2d 194; People v Hardy, 30 Misc 3d 967.) II. Rewriting the manslaughter law to punish neonatal losses renders it unconstitutional. (People v Dietze, 75 NY2d 47; Matter of Gloria C. v William C., 124 Misc 2d 313; Hughson v St. Francis Hosp. of Port Jervis, 92 AD2d 131; People v Vercelletto, 135 Misc 2d 40; People ex rel. Simpson v Wells, 181 NY 252; Ferguson v Charleston, 532 US 67; Matter of Sara Ashton McK. v Samuel Bode M., 111 AD3d 474; Cramp v Board of Public Instruction of Orange Cty., 368 US 278; People v Bright, 71 NY2d 376; Grayned v City of Rockford, 408 US 104.) III. Prosecuting women for neonatal losses is cruel, unjust, and serves no state interest.
   OPINION OF THE COURT

Pigott, J.

On May 30, 2008, defendant, driving eastbound on Whiskey Road in Suffolk County, entered the westbound lane and struck the vehicle of Robert and Mary Kelly head on, killing them both. At the time of the collision, defendant was 34 weeks’ pregnant. She was taken to a local hospital where, due to signs of fetal distress, she consented to an emergency cesarean section. Despite the best efforts of hospital personnel, the baby died six days later. An autopsy confirmed that the cause of death was due to injuries sustained in the accident.

Thirteen months later, defendant was indicted on three counts of manslaughter in the second degree (Penal Law § 125.15 [1]), one count of aggravated vehicular homicide (Penal Law § 125.14), and one count of operating a motor vehicle while under the combined influence of drugs or of alcohol and any drug or drugs (Vehicle and Traffic Law § 1192 [4-a]). After the first jury failed to reach a unanimous verdict, the parties proceeded to a second trial on all counts.

The People’s theory was that defendant was traveling in excess of 50 miles per hour in a 30 mile-per-hour zone and, while under the influence of a prescription drug and alcohol, struck the Kelly vehicle in the Kellys’ lane of traffic. As a result of the collision, defendant, who was not wearing a seat belt, struck the steering wheel, causing injury to her unborn fetus. The People’s argument at trial was that defendant’s reckless conduct not only resulted in the death of the Kellys, but also her six-day-old child.

Following deliberations, the jury returned a verdict finding the defendant not guilty on all counts except manslaughter in the second degree for the death of her child. The Appellate Division affirmed defendant’s conviction (113 AD3d 793 [2d Dept 2014]). A Judge of this Court granted defendant leave to appeal (23 NY3d 1063 [2014]). We now reverse.

The underlying facts and circumstances of this appeal are tragic to all parties involved. The sole issue that we reach on this appeal, however, is whether a woman can be convicted of manslaughter for reckless conduct that she engaged in while pregnant that caused injury to the fetus in útero where the child was born alive but died as a result of that injury days later (see People v Martinez, 81 NY2d 810 [1993] ). We hold that it is evident from the statutory scheme that the legislature, in enacting Penal Law §§ 125.05 (1) and 125.15 (1), did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.

The issue is strictly one of statutory interpretation. As relevant here, “[a] person is guilty of manslaughter in the second degree when . . . [h]e [or she] recklessly causes the death of another person” (Penal Law § 125.15 [1]). Penal Law § 125.05 (1) provides that, when referring to the victim of a homicide, a person is “a human being who has been born and is alive.” The question is, did the legislature, through its enactment of the two statutory provisions, intend to hold pregnant women criminally responsible for engaging in reckless conduct against themselves and their unborn fetuses, such that they should be subject to criminal liability for prenatal conduct that results in postnatal death? Under the current statutory scheme, the answer to this question is no.

This is a case of first impression. The legislature’s definition of the word “person,” when referring to a homicide victim, as “a human being who has been born and is alive,” is relatively broad. When it is read in conjunction with the manslaughter in the second degree provision at issue here, however, it is also ambiguous as to whether the legislature intended to criminalize a mother’s own reckless conduct directed at herself and, consequently, the fetus. Consideration of the entire statutory scheme is necessary in order to divine whether the legislature intended to criminalize such conduct.

Where the legislature has decided to criminalize a pregnant woman’s conduct towards her unborn fetus, it has clearly established statutory prohibitions against such conduct. In this regard, the legislature has made it a class B misdemeanor for a pregnant woman to “commit[ ] or submit! ] to an [unjustifiable] abortional act upon herself” (Penal Law § 125.50 [self-abortion in the second degree]). According to Penal Law § 125.00, the crime of self-abortion in the second degree is not considered a “homicide.” Further, the legislature has determined that a woman who is pregnant for more than 24 weeks, and who commits or submits to an unjustifiable “abortional act” that causes her to miscarry, is guilty of a class A misdemeanor (Penal Law § 125.55), not a felony.

Both “self-abortion” statutes require the mens rea of intent, and, yet, the legislature has determined that the punishment for such intentional conduct is no greater than a misdemeanor. In contrast, the manslaughter in the second degree statute under which defendant was charged and convicted is a class C felony, and requires that the People prove that defendant acted with the mental state of “recklessness,” i.e., that she was “aware of and consciously disregard[ed] a substantial and unjustifiable risk” that a particular result would occur or circumstance existed (Penal Law § 15.05 [3]). We conclude that the legislature did not intend to impose greater punishment on pregnant women for their alleged reckless conduct toward a fetus than for their intentional conduct. While both first- and second-degree manslaughter statutes have provisions referencing pregnant women, those references are only in the context of non-justifiable “abortional acts” resulting in the death of the mother (as opposed to the child) (see Penal Law §§ 125.20 [3] [manslaughter in the first degree]; 125.15 [2] [manslaughter in the second degree]).

Had the legislature intended to include pregnant women in the class of individuals who may be guilty of manslaughter in the second degree for reckless acts committed while pregnant, resulting in the eventual death of their child, it could clearly have done so. Moreover, had defendant’s fetus died in útero, then, plainly, defendant could not have been prosecuted under the manslaughter statute because the fetus would not have fallen under the definition of a “person” (Penal Law § 125.05 [1]; see People v Vercelletto, 135 Misc 2d 40 [Ulster County Ct 1987] [dismissing the count of vehicular manslaughter in the second degree against a defendant who struck a car being operated by a pregnant woman, resulting in a stillbirth, holding that the stillborn fetus was not a “person” under the statute]; People v Joseph, 130 Misc 2d 377 [Orange County Ct 1985] [dismissing the counts of criminally negligent homicide and vehicular manslaughter against defendant for causing the death of an unborn child]).

The People concede that, had defendant not consented to the cesarean section with the result that the child be born alive, she would not have been prosecuted for manslaughter in the second degree. Thus, if we accorded the word “person” the interpretation advocated by the People, it would create a perverse incentive for a pregnant woman to refuse a cesarean section out of fear that if her baby is born alive she would face criminal charges for her alleged reckless conduct, jeopardizing the health of the woman and the unborn fetus. This is plainly not what the legislature intended when it enacted the definition of “person” under section 125.05 (1) or the manslaughter in the second degree offense as delineated in Penal Law § 125.15 (1). To interpret the statutory provisions otherwise would enlarge their criminal reach beyond what the legislature intended (see People v Wood, 8 NY2d 48, 51 [1960] [providing that “(p)enal responsibility, unlike moral responsibility, cannot be extended beyond the fair scope of the statutory mandate”]).

The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in útero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor. Conceivably, one could find it “reckless” for a pregnant woman to disregard her obstetrician’s specific orders concerning bed rest; take prescription and/or illicit drugs; shovel a walkway; engage in a contact sport; carry groceries; or disregard dietary restrictions. Such conduct, if it resulted in premature birth and subsequent death of the child, could result in criminal liability for the mother. At present, such conduct, if it caused a stillbirth, would not result in criminal prosecution of the mother if the fetus died in útero. Any change in the law with regard to such matters would be within the province of the legislature.

Accordingly, the order of the Appellate Division should be reversed, and the remaining count of the indictment dismissed.

Fahey, J.

(dissenting). I respectfully dissent and would affirm the Appellate Division’s order. I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person.

On the afternoon of May 30, 2008, defendant was the operator of a motor vehicle traveling on Whiskey Road, a curvy thoroughfare in a heavily wooded area of Suffolk County that was divided by a double-yellow line and that provided one lane of travel in each direction. According to the People, defendant, who was 34 weeks’ pregnant, was under the combined influence of alcohol and a prescription drug, using a mobile telephone, and speeding at the time. Undisputed is the fact that the vehicle operated by defendant crossed from its lane of travel into the path of an oncoming vehicle occupied by Robert and Mary Kelly. As a result of the collision that ensued, both of the Kellys died and defendant’s baby was delivered via an emergency cesarean section. Ultimately, however, the baby’s respiratory, renal, and neurological problems proved insurmountable, and she died six days after her birth as a result of what the autopsy report characterized as “hypoxic encephalopathy and prematurity” due to “abruptio placentae,” which in turn was attributed to “maternal blunt force trauma.” Following various events immaterial to the main issue on this appeal, defendant was charged by indictment with three counts of manslaughter in the second degree (Penal Law § 125.15 [1]) with respect to the deaths of each of the Kellys and the baby. The ensuing jury trial saw defendant acquitted of the manslaughter counts related to the Kellys but convicted of the manslaughter count pertaining to the baby, and on appeal the Appellate Division affirmed the judgment (113 AD3d 793 [2d Dept 2014]).

I agree with the majority that this issue is strictly one of statutory interpretation (majority op at 89), but I disagree with its reading of the pertinent statutes. My analysis begins with Penal Law § 125.05, which is entitled “Homicide, abortion and related offenses; definitions of terms.” As its title suggests, section 125.05 contains “definitions . . . applicable to [Penal Law] article [125].” Included in the terms defined is “person” which, “when referring to the victim of a homicide, means a human being who has been born and is alive” (§ 125.05 [1]).

Based on that language alone, a reasonable mind perhaps could conclude that the Penal Law does not provide for criminal liability for manslaughter in the second degree in this context. However, section 125.05 is to be read in tandem (see generally Matter of Wallach v Town of Dryden, 23 NY3d 728, 744 [2014], rearg denied 24 NY3d 981 [2014]; McKinney’s Cons Laws of NY, Book 1, Statutes § 97) with, inter alia, Penal Law § 125.00, which is entitled “Homicide defined” and which states that

“[hjomicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than [24] weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.”

Section 125.00 clearly states a legislative intent to protect both the born and “unborn child [ren] with which a female has been pregnant for more than [24] weeks.” With that precept in mind I turn to Penal Law § 125.15 (1), which embodies the crime of manslaughter in the second degree of which defendant was convicted. Pursuant to that section, “[a] person is guilty of manslaughter in the second degree when . . . [h]e [or she] recklessly causes the death of another person . . . .” (Penal Law § 125.15 [1].) “Recklessly” is defined in Penal Law § 15.05 (3), which states that

“[a] person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he [or she] is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.”

Distilled to its essence, defendant’s contention, which the majority credits, is that because her allegedly reckless conduct did not occur while the baby was a person, that is, because the allegedly reckless conduct occurred before the baby was born alive, she cannot be convicted of a crime that requires her reckless actions to have caused the baby’s death. I disagree because I see no such temporal qualification in the relevant parts of the Penal Law. Where, as here, the baby-victim is born alive but subsequently dies, the Penal Law allows for the conviction of a defendant mother of manslaughter in the second degree where the acts causing that baby’s death occurred before that infant was born.

The pertinent parts of the Penal Law speak to victims as they are, not as they were at the time the acts giving rise to the crime were committed. There is no pregnant mother exception from criminal liability for reckless acts that result in the death of a mother’s baby postpartum. Indeed, Penal Law § 125.15 (1) does not require that the reckless conduct contemplated therein have occurred while the victim was a person, and the definition of “recklessly” provided in section 15.05 (3) contemplates that a present act yielding a future result will come within its ambit.

In so concluding I note that the Appellate Division reached a similar result in People v Hardy (128 AD3d 1453 [4th Dept 2015], lv denied 25 NY3d 1202 [2015]). There, the “conviction arose from an incident that began when [the defendant] fled the scene of an attempted petit larceny” in an automobile (id. at 1453).

“During that flight, [the defendant’s] vehicle crossed the center line [of the road on which it traveled], side-swiped a car, then collided head-on with another vehicle driven by a woman who had been pregnant for approximately 23 weeks, causing her to sustain severe injuries. In order to save the mother’s life, her female child was delivered by cesarean section,” and “[t]he child’s heart beat for about 2V2 hours before she died” (id. at 1453-1454).

The Appellate Division determined that the evidence was legally sufficient to support the conviction of manslaughter in the second degree (Penal Law § 125.15 [1]) “inasmuch as the child ‘was a “person” from the moment of her birth . . . , notwithstanding that [the] defendant may have perpetrated the act that caused the injury prior to her birth’ ” (id. at 1455, quoting People v Hayat, 235 AD2d 287, 287 [1st Dept 1997], lv denied 89 NY2d 1036 [1997]).

Similar to Hardy is People v Hall (158 AD2d 69 [1st Dept 1990], lv denied upon reconsideration 76 NY2d 1021 [1990]), wherein the Appellate Division applied the “born alive” rule. That rule provides that “a person [cannot] be convicted of an offense involving homicide unless the victim, including a child whose death was the result of prenatal injuries, was first born alive” (id. at 76; see People v Hayner, 300 NY 171, 174 [1949] [enunciating the “born alive” rule]). In Hall the defendant had shot a pregnant woman in the abdomen, which caused that woman to give birth by cesarean section to a baby who lived for 36 hours before dying “from a series of [injuries] attributed to prematurity and oxygen deprivation” (Hall, 158 AD2d at 71). Based on those circumstances the defendant was convicted of, inter alia, manslaughter in the second degree (see id. at 72), and the Appellate Division affirmed that judgment of conviction, essentially reasoning that because the baby had been born alive, it constituted a “person” within the meaning of Penal Law §§ 125.05 (1) and 125.15 (see Hall, 158 AD2d at 73-77).

Hardy and Hall are factually different from this case in that the perpetrator in each of those matters was not the mother of the deceased child. The instant statutes, however, do not draw a distinction between violence perpetrated against an “unborn child” (Penal Law § 125.00) later born alive by that child’s mother and violence perpetrated against the same child by a third party (cf. majority op at 91).

I appreciate that my conclusion could promote the obtuse scenario of encouraging one situated similarly to defendant to allow her unborn child to die within her following like misconduct. Indeed, here, had defendant avoided a cesarean section following the collision and the death occurred in útero, she could not have been charged with manslaughter in the second degree, which is a class C felony (Penal Law § 125.15), for the simple reason that the “person” element of that crime could not have been met (see § 125.05 [1]). Had that scenario come to pass, defendant conceivably could have been charged with the class E felony of abortion in the second degree (§ 125.40) or the class D felony of abortion in the first degree (§ 125.45), but both of those crimes have an intent element that would likely have been impossible to prove in the context of this automobile accident. That hypothetical point notwithstanding, “a perpetrator of illegal conduct takes his [or her] victims as he [or she] finds them” (Hall, 158 AD2d at 79). The statutory scheme in question reflects a legislative prerogative that we have no legal basis to modify.

Here it is beyond dispute that the baby was born alive following the collision but died six days later as a result of injuries caused by the reckless conduct of her mother. Through Penal Law article 125 and, more particularly, Penal Law § 125.15 (1), the legislature consciously chose to place events such as these in the class of circumstances that may constitute manslaughter in the second degree. Based on those plain provisions of the Penal Law, I conclude that the baby was a person in the eyes of the Penal Law, that the mother can be held accountable under section 125.15 (1) for the baby’s death, and that the Appellate Division’s order should be affirmed.

Chief Judge Lippman and Judges Rivera, Abdus-Salaam and Stein concur; Judge Fahey dissents and votes to affirm in an opinion.

Order reversed and the remaining count in the indictment dismissed.

      . Prior to defendant’s first trial, the defense successfully moved for the dismissal of the counts of operating a motor vehicle while using a mobile telephone, speeding, and endangering the welfare of a child, the last count being dismissed because the court held that the crime did not apply to an unborn fetus (26 Misc 3d 1232[A], 2010 NY Slip Op 50348[U] [Sup Ct, Suffolk County 2010]).

      . We have no occasion to reach the remaining issues raised by defendant.

      . The Penal Law defines an “abortional act” as
      “an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female” (Penal Law § 125.05 [2] [emphasis supplied]).

      . These cases and the present case are distinguishable from those cases where a third party has assaulted a pregnant woman, resulting in the death of the child after its birth (see e.g. People v Hall, 158 AD2d 69 [1st Dept 1990], lv denied upon reconsideration 76 NY2d 1021 [1990]).

      . Defendant raises several contentions on appeal, and in my view none has merit. Given the narrowness of the majority opinion, however, I will limit my discussion to the core question on this appeal, that is, whether the six-day-old child was a “person” within the meaning of Penal Law § 125.15 (1).

      . Hypoxic encephalopathy is a condition that occurs when the brain is deprived of oxygen, whereas abruptio placentae (also known as placental abruption) is the premature separation of the placenta from the uterus.

      . To be clear, the trial considered the aforementioned manslaughter counts, as well as one count each of aggravated vehicular homicide (Penal Law § 125.14) and driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs (Vehicle and Traffic Law § 1192 [4-a]) that were levied in a prior indictment. The latter counts survived defendant’s motion to dismiss the prior indictment, and the jury acquitted defendant of those counts as well as of the counts of manslaughter in the second degree pertaining to the Kellys.

      . My conclusion does not defy the rule of lenity given my view that only one construction of the relevant statutes is plausible (see People v Golb, 23 NY3d 455, 468 [2014] [“if two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity” (internal quotation marks omitted)], cert denied 574 US —, 135 S Ct 1009 [2015]). Similarly, my conclusion does not breach the principle articulated in Judge Jones’s concurrence in People v Valencia (14 NY3d 927 [2010]) “ ‘that the physical conduct and the state of mind must concur,’ ” and “ ‘that there is concurrence when the defendant’s mental state actuates the physical conduct’ ” (id. at 933-934 [Jones, J., concurring], quoting 1 LaFave, Substantive Criminal Law § 6.3 [a] at 451 [2d ed 2003] [footnotes omitted]) because here defendant’s actions and her state of mind were one.