Opinion
Index No. 155175/2018 Motion Seq. No. 001
12-14-2023
LAURA LEWIS, Plaintiff, v. RELATED BROADWAY DEVELOPMENT, LLC, RELATED MANAGEMENT, L.P. Defendant.
Unpublished Opinion
PRESENT: HON. ADAM SILVERA, Justice
DECISION + ORDER ON MOTION
ADAM SILVERA, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 51, 52 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, and after oral arguments, it is ordered that defendants Related Broadway Development, LLC and Related Management Company, L.P.'s motion for summary judgment of dismissal and plaintiff Laura Lewis' cross-motion for summary judgment on the issue of liability are decided below.
Plaintiff commenced this personal injury action seeking monetary damages for injuries sustained as a result of a trip and fall on an alleged defect abutting the residential apartment building in which plaintiff resided. On May 21, 2018, plaintiff was finishing a jog when she tripped on a sidewalk slab diagonally bordering the tree well near the entrance of plaintiffs residential apartment building and fell, causing injuries.
Here, defendants move for summary judgment arguing that it had no notice of the alleged defect, and that there is no actionable defect at all. According to defendants, plaintiff resided in the abutting residential apartment since 2001 and did not report any defect in the sidewalk for over seventeen (17) years prior to her accident in 2018. Defendants proffer, inter alia, the deposition transcripts of plaintiff as well as the deposition transcript of defendants' residential manager, Mr. Simon Camaj. Defendants further proffer photographs of the alleged defect. According to defendants, Mr. Camaj never noticed the defect, and the height differential would not rise to the level of an actionable defect.
Plaintiff cross-moves for summary judgment, and opposes defendants' motion, arguing that the defect in the sidewalk slab which caused her fall had a height differential of half an inch to an inch. Plaintiff also argues that, while there is video footage of the accident, such video footage has never been provided by defendants, and Mr. Camaj testified that he did not have possession of such video. Mr. Camaj, however, did testified that he viewed the video and that it showed plaintiff tripping on the sidewalk. Two additional employees of defendant residential building were deposed and both testified that they did not notice the defect. In support of her motion, plaintiff proffers the report of an engineer, Herman Silverberg, P.E., who states that he measured the height differential between the sidewalk slabs at issue herein to be 5/8ths of an inch. As such, plaintiff contends that the New York State Administrative Code §19-152 was violated, and that defendants have failed to maintain the sidewalk abutting their property in a reasonably safe condition as required by law. According to plaintiff, defendants had ample notice of the defect as all three (3) employees testified as to the location of the accident and walked by the defect daily. Plaintiff further argues that defendants' motion must be denied as they failed to meet their initial burden.
In reply, defendants argue that the Administrative Code is not a strict liability statute, and that plaintiff failed to disclose their expert at the time of discovery even though such expert had already been retained by plaintiff.
Summary judgment is a drastic remedy, only to be granted if the moving party sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986). "The proponent of a summary judgment motion 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 case". Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 (1st Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204 (1st Dep't 1990). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 N.Y.2d 471, 475-476 (1979).
Here, issues of fact exist regarding the height differential in the sidewalk slabs, and whether such differential was noticeable. Thus, issues of fact exist as to notice of the alleged defect. The Court notes that a review of the deposition transcripts reveals that plaintiff herself did not notice the defect for over 17 years. See Notice of Motion. Exh. E, Depo. Tr. of Laura Lewis, dated May 3, 2019, p. 27, In. 24 - p.28, In. 3. Thus, issues of fact exist sufficient to preclude summary judgment. Thus, the instant motion and cross-motion, both seeking summary judgment, are denied.
Accordingly, it is
ORDERED that defendants Related Broadway Development, LLC and Related Management Company, L.P.'s motion for summary judgment of dismissal is denied in its entirety; and it is further
ORDERED that plaintiff Laura Lewis' cross-motion for summary judgment on the issue of liability is denied in its entirety; and it is further
ORDERED that, within thirty days of entry, plaintiff shall serve a copy of this order upon all parties, together with notice of entry; and it is further
This constitutes the Decision/Order of the Court.