Summary
In D'Amico v. Archdiocese of N.Y., 95 A.D.3d 601, 944 N.Y.S.2d 106 [1st Dept. 2012], we found there was a question of fact as to whether the defect was trivial because the plaintiff's expert opined that the defect was “substantial” under 34 RCNY 2–09(f)(5)(iv).
Summary of this case from Fayolle v. E. W. Manhattan Portfolio L.P.Opinion
2012-05-15
Rosemarie D'AMICO, Plaintiff–Appellant, v. ARCHDIOCESE OF NEW YORK, et al., Defendants–Respondents. [And a Third Party Action].
Profeta & Eisenstein, New York (Fred R. Profeta, Jr. Of counsel), for appellant. Windels Marx Lane & Mittendorf, LLP, New York (Christopher D. Mehno of counsel), for Archdiocese of New York, St. Joseph School, Church of St. Joseph and Church of Joachim, respondents.
Profeta & Eisenstein, New York (Fred R. Profeta, Jr. Of counsel), for appellant. Windels Marx Lane & Mittendorf, LLP, New York (Christopher D. Mehno of counsel), for Archdiocese of New York, St. Joseph School, Church of St. Joseph and Church of Joachim, respondents.
Barry M. Karson, White Plains, for West New York Restoration Inc. and West New York Restoration of Ct., Inc., Respondents.
MAZZARELLI, J.P., SWEENY, MOSKOWITZ, ABDUS–SALAAM, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered March 9, 2011, which granted defendants' motions for summary judgment dismissing the complaint, unanimously modified, on the law, the motion of defendants Archdiocese of New York, St. Joseph School, Church of St. Joseph, and Church of Joachim (Church defendants) denied, and otherwise affirmed, without costs.
Plaintiff tripped and fell on the sidewalk abutting property owned and operated by the Church defendants. She commenced this personal injury action against them and defendants West New York Restoration, Inc. and West New York Restoration of CT, Inc. (collectively West New York), which, pursuant to a contract with the Archdiocese, repaired and replaced the sidewalk in 1998.
In opposition to the Church defendants' submission of evidence demonstrating that the sidewalk defect was trivial, plaintiff submitted the affidavit of an engineer who measured the defect at 11/16 of an inch, and opined that it constituted a “substantial defect” under 34 RCNY 2–09(f)(5)(iv). Accordingly, we cannot find, as a matter of law, that the defect was trivial ( see Narvaez v. 2914 Third Ave. Bronx, LLC, 88 A.D.3d 500, 930 N.Y.S.2d 561 [2011];Tese–Milner v. 30 E. 85th St. Co., 60 A.D.3d 458, 873 N.Y.S.2d 905 [2009] ), and the issue is a question for a finder of fact ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977–978, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ).
The Church defendants also failed to demonstrate that they did not have actual or constructive notice of the condition, which is visible in photographs and which plaintiff testified she had noticed previously ( see Jacobsen v. Krumholz, 41 A.D.3d 128, 836 N.Y.S.2d 603 [2007] ).
Supreme Court properly granted defendant West New York's motion becauseit offered evidence that it did not have a contract to maintain the sidewalk and had not created the alleged condition as a result of its work on the subject sidewalk about a decade earlier, and plaintiff failed to submit any evidence to raise an issue of fact as to its responsibility ( see Church v. Callanan Indus., 99 N.Y.2d 104, 111–112, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002];Izzo v. Proto Constr. & Dev. Corp., 81 A.D.3d 898, 899, 917 N.Y.S.2d 287 [2011];Dennebaum v. Rotterdam Sq., 6 A.D.3d 1045, 776 N.Y.S.2d 136 [2004] ). We have considered the parties' remaining contentions and find them unavailing.