Opinion
Index No. 107677/07
06-29-2009
PATRICIA WATKINS, Plaintiff, v. ALFRED FORSYTH and ROMAN LUTAK, Defendant.
, J.:
In this personal injury action, defendant Alfred Forsyth (Forsyth) moves for summary judgment pursuant to CPLR 3212 dismissing the complaint against him. Defendant Roman Lutak (Lutak) separately moves for the same relief. For the reasons set forth below, both motions are denied.
Background
Plaintiff Patricia Watkins (Watkins) alleges that she sustained personal injuries on December 18. 2006, at approximately 4:45 pm, when she tripped and fell on a raised section of the sidewalk in front of 73 and 75 St. Mark's Place, New York, NY, respectively Forsyth's and Lutak's properties. (Watkins Dep. at 18, 39). At her deposition, Watkins testified that she was in the process of walking westward down the middle of the sidewalk when her right foot ___ a raised section of the sidewalk, causing her to fall on her right side (Id. at 22, 26, 40). Watkins was presented photographs of the site of the accident at her deposition and testified thai the photographs accurately depicted the condition of the sidewalk at the time of the accident. (Id. at 38-14).
At her deposition. Watkins testified that she was walking between Avenue A and First Avenue at the time of the accident, (Watkins Dep. at 18). However, it is clear from the record that 73 and 75 St. Mark s Place is between First and Second Avenues.
At his deposition, Forsyth testified thai in 1 990, he hired a contractor to replace the entire sidewalk in front of his properly at 73 St Mark's Place. Lutak testified that some time in the 1990's, the City replaced the entire sidewalk in front of his property at 75 Mark's Place.
Watkins retained Scott Silberman (Silberman), a registered professional engineer, to inspect the site of the accident and testify as to the sidewalk's condition. Silberman inspected the sidewalk on August 0, 2007, and measured a vertical gap of 9/16 of an inch between the two sidewalk Hags bordering the 73/75 St. Mark's Place properly line. (Silberman Report. 2).
Silberman submits an affidavit which incorporates by references an attached report elated August 10, 2007 which resulted from his August 6, 2007 investigation of the site.
Forsyth retained Thomas Piciocco (Piciocco), a licensed surveyor, to conduct a survey of the site. Piciocco's survey showed that the expansion joint connecting the adjacent sidewalk Hags at issue spanned an inch, beginning at the boundary between the defendants' properties and extending one inch east into the area in front of kulak's property. (Piciocco Affidavit, para. 5). The survey showed the vertical gap to vary from half an inch to three-quarters of an inch along the middle portion of the sidewalk. (Id. at Exhibit B).
Forsyth and Lutak each move for summary judgment, arguing that, even assuming Silberman correctly found a vertical gap of 9/16 of an inch between sidewalk flags, such gap is a trivial defect and "does not amount to an actionable condition absent evidence that such a defect prcscnt[s] a significant hazard." (Forsyth Notice of Motion for Summary Judgment, para. 26). Each defendant further argues that he lacked actual and constructive notice of the defect and therefore cannot be held liable
In opposition, Watkins submits Silberman's affidavit, arguing that Silberman's opinion as to the nature of the defect is sufficient to raise issues of fact regarding whether the deled at issue was sufficient to give raise to liability on the part of the defendants. In his affidavit, Silberman opines the gap at issue as "an inherent and unreasonable danger to pedestrians"' and notes, that several engineering and administrative guidelines, including, § 19-1 52(a)(4) of the Administrative Code of the City of New York (Administrative Code). consider any ____ gap greater than half an inch to be a substantial defect, since '[m]ost trip and fall accidents are caused by [such] abrupt changes in elevation." (Silberman Report, at 2 - 3). Silberman also notes (hat the Administrative ('ode enforces a duty on a property owner to repair any defective sidewalk flag in front of his properly. (Id. at 3-4)
Section § 19-152(a)(4) of the Administrative Code of the City of New York provides, in pertinent part, that an owner of real properly has tin obligation to "reconstruct, repair or ____those sidewalk flags" where, inter alia. there exists "a trip hazard, where the vertical grade differential between adjacent sidewalk Hags is greater than or equal to one half an inch..."
Watkins further argues that whether the defendants had constructive notice of the delect is a question of fact since the defect is in front of defendants' property. In addition, Watkins points out that according to Silberman's affidavit, the defect may have formed due to water migration over a long duration or gradual settling under the sidewalk's surface. (Id. at 4-5 These gradual changes, Watkins argues, imply that the defendants would have had plenty of lime to take note of the defect and make due repairs.
In reply to Watkins' arguments, Lutak and Forsyth assert that Silberman's opinion as to the nature of the defect and how it formed is speculative and not based on any form of admissible evidence. Additionally, the defendants argue that Silberman provides no basis for his opinion dial the 9/16 inch defect he observed nearly eight months Lifter the accident existed at the lime of the accident. With respect to the Administrative Code, the defendants argue thai courts have granted summary judgment even though defects at issue have violated the Administrative Code. See, e.g., Villaplana v. Kane Assocs. Family Ltd. P'ship, 17 Misc 3d 1129(A), *o (Sup. Ct. N.Y. County 2007).
Additionally, Forsyth asserts that he cannot be held liable since, according to Picioceo's survey, the expansion joint over which Watkins tripped spans Lutak's property and not his.
Watkins and Lulak both oppose Forsyth's argument. Watkins argues that Piciocco's affidavit is ambiguous as to where Watkins fell. Similarly, kulak argues that Piciocco's identification of the location of the expansion joint on the sidewalk does not prove where Watkins fell, kulak further notes that § 2-09(f)(4)(viii) of the Pules of the City of New York provides that sidewalk (lags with substantial defects must be replaced, and one of the adjacent flags in question is in front of Forsyth's property.
Discussion
On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the lace..." Winegrad v. New York Univ. Med. Cir., 64 NY2d 851, 852 (1985). Once (he proponent has made this showing, the burden of proof shifts to the party opposing (he motion to produce evidentiary proof in admissible form to establish that material issues of fact exist and require a trial. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1980).
"Whether a dangerous or defective condition . . . crea(e[s] liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury.'" ____ v. Coanty of Suffolk, 90 NY2d 976, 97___ (1997), citing ____ v. Summa, 193 AD2d 647 (2d Dept. 1993). However, "trivial defects on a walkway not constituting, a trap or nuisance, as a consequence of which a pedestrian might . . . trip," are not actionable. Morales v. Riverbay Corp., AD2d 271 (1st Dept. 1996). In determining, whether an alleged defect is trivial as a mailer of law, the court must examine all the facts presented, including the width, depth, elevation, irregularity and appearance of the alleged defect, along with the lime, place and circumstances of the injury, and whether it constitutes a trap or snare. Trincerc v. County of Suffolk, 90 NY2d at 977, citing Caldwelly. Vill. of ____ Park, 304 NY 268 (1952).
The faed that a sidewalk defect violates the Administrative Code ma} be introduced as some evidence of negligence, (see Hlliol v. City of New York, 95 NY2d 730, 737 (1999)), but the defect may still be trivial as a mailer of law. See Villaplana v. Kane Assocs. Family Ltd. P'ship, 17 Misc. 3d 1 129(A), 6 (Sup. Ct. N.Y. County 2007), liven under the Administrative Code, "a height differential alone is insufficient to establish the existence of a dangerous or defective condition." Id.; see, e.g., Morales v. Riverbay Corp., 226 AD2d at 271 (ruling that a difference in elevation of about an inch, without anything more, does not constitute a trap or snare). However, the defect may be actionable when the change in height is abrupt. See Tineo v. Parkchester. S Condo., 304 AD2d 383 (1st Dept. 2003); Nin v. Bernard, 257 AD2d 417 (1st Dept. 1999) (ruling a 3/16 of an inch depression to be a trap or snare because of its sharp edges).
The rulings in Tineo and Villiplana illustrate the specificity of detail required to defeat a defendant's motion for summary judgment. In Tineo. the plaintiff tripped over a broken and uneven section of asphalt pavement, causing her to fall. The deled was four square feci in area, three quarters of an inch deep, and sunk abruptly at its perimeter. Photographs of the accident site were taken and an expert witness characterized the sue as a tripping hazard. The court therefore denied summary judgment. Tineo v. Parkchestcr S. Condo., 304 AD2d at 385 - 84; see also Villanlana v. Kane Assocs. family Ltd. P'ship, 17 Misc. 3d 1129(A) at 7.
Villaplana, like the present ease, involved a trip and fall over a vertical gap between two sidewalk dags. There, the plaintiff provided evidence that the gap was half an inch and argued that the Administrative Code characterized such a nap as a substantial defect. However. the court ruled that any additional evidence to establish the existence of any trap-like characters beyond a height differential, the case mast be dismissed. Villanlana v. Kane Assocs. family Ltd. P'ship, 17 Misc. 3d 1129(A) at 7 - 8.
Here, even if the defendants have met their burden of proof by showing that the delect was trivial, Watkins litis controverted this showing by providing evidentiary proof that the defect may constitu te a trap or share. Moth Watkins in her deposit ion and Silberman in his affidavit assert that the gap in the sidewalk was abrupt. Silberman further opines that the gap v as "an inherent danger"' in need of repair. Accordingly, (here arc triable issues of fact as to the nature of the defect and the defendants' consequent liability.
Silberman's opinion that the sidewalk conditions had not significantly changed from the time of the accident until the lime of his inspection is supported by his review of Watkins' photographs, which according to Watkins accurately depict the condition of the sidewalk at the tunc of the ace idem. Accordingly, contrary to defendants' position. Silberman's opinion cannot be disregarded on the ground that his inspection of the sidewalk occurred almost eight months after the accident.
In a personal injury action like the present case, "it l not the plaintiff's burden in opposing motions for summary judgment to establish that defendants had actual notice of the hazardous condition. Rather, it is the defendants' burden to establish the lack of notice as a matter of law." Giuffrida v. Metro N. Commuter R. Co., 279 AD2d 403, 404 (1st Dept. 2001). "A defendant seeking to dismiss the complaint must demonstrate the lack of evidence regarding how the ____ condition came into existence, how visible and apparent it was. and lor how long period of time prior to the accident it existed." Id.
In the present case. Silberman's opinion that the condition could have taken a significant period of time to develop is sufficiently supported by his engineering experience. Given the presence of Forsyth and Lutak at the premises, their responsibility to maintain the walkways in front of their respective properties and the questions of fact as to whether the gap was a trivial or substantial defect, there are triable issues of fact as to whether each defendant had actual and/or constructive notice of the relevant condition.
As for Forsyth's argument that the defect spans only Lutak's properly, such argument mistakenly focuses on the location of the sidewalk expansion joint instead of on the sidewalk flags. Silberman's affidavit constitutes evidence thai the vertical gap in the sidewalk was created by the shifting of one or both sidewalk flags bordering the 73/75 St. Mark's Place property line, although it is unclear from the affidavit and survey which flags shifted. Each defendant is responsible for one of the flags; therefore, there are questions of fact as to whether Forsyth and Lutak are liable.
In view of the above, it is
ORDERED that the motion for summary judgment by defendant Forsyth is denied; and it is further
ORDERED that the motion for summary judgment by defendant Lutak is denied; and it is further
ORDERED that a pre-trial conference shall be held in Part 11 room 351, 60 Centre Street, New York, NY, ____.
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J.S.C.