Opinion
Index No. 704986/2018 Motion Cal. No. 19 Motion Seq. No. 4
01-19-2022
LIE MEI, Plaintiff, v. CORNISH ASSOCIATES, LLC, Defendant.
Unpublished Opinion
Motion Date: 5/13/21
Present: HONORABLE MAURICE E. MUIR Justice
MAURICE E. MUIR J.S.C.
The following electronically filed ("EF") documents read on this motion by Cornish Associates, LLC ("Cornish" or "defendant") for order pursuant to CPLR § 3212 granting it summary judgment and dismissing Lie Mei's ("Ms. Mei" or "plaintiff') complaint in its entirety together with such other and further relief as this Court deems just and proper.
Papers Numbered
Notice of Motion-Affirmation-Exhibit-Service..................... EF 48-57
Affirmation in Opposition- Exhibit-Service................................... EF 60 - 63
Affirmation in Reply................................................................... EF 66
Upon the foregoing papers, it is ordered that this motion is determined as follows:
BACKGROUND
This is an action to recover damages for personal injuries allegedly sustained by Ms. Mei, who alleges that on March 22, 2018, she injured herself on the defendant's sidewalk located at 83-03 Cornish Avenue, in the County of Queens, city and state of New York due to the dangerous, defective, hazardous and trap like conditions. As a result, on April 3, 2018, the plaintiff commenced the instant action; and on May 4, 2018, issue was joined where, the defendant interposes an answer. Now, the defendant seeks summary judgment in its favor. The defendant argues that "[a]t her deposition, the plaintiff testified unequivocally that she did not feel anything happen to either foot immediately before she had her accident. The footage of the accident does not depict any condition of the subject sidewalk causing the plaintiff to fall." As such, the defendant argues that ".. . the testimony of the plaintiff and the footage of the accident are fatal to her claim; Consequently, the complaint... must be dismissed. The law is clear that, in a matter involving a trip and fall, the plaintiffs inability to identify the cause of the fall is fatal to the cause of action. This is because a finding that the defendant's negligence, if any, proximately caused the accident would be based on speculation."
In opposition, the plaintiff testified at her deposition that while she was on the ground, she observed a hole or trap in the sidewalk, which cause her to fall. Plaintiff further argues that "[d]efendant erroneously alleges, '[t]he Plaintiff could not describe the cause of her accident. Moreover, the plaintiff argues that "[n]onsensically, the Defendant alleges that the defective condition could not be observed from the camera vantage point and presumably, that because the defect could not be visually observed from the distance that the camera was from the defective condition that is the condition "must not exist".
APPLICABLE LAW
In a slip and fall case, a property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence" (Johnson v. 101-105 S. Eight St. Apts. Hous. Dev. Fund Corp., 185 A.D.3d 617 [2d Dept 2020] citing Parietti v. Wal-Mart Stores, Inc., 29 N.Y.3d 1136 [2017]; see also Bonilla v. Southside United Hous. Dev. Fund Corp., 181 A.D.3d 550 [2d Dept 2020]; Colini v. Stino, Inc., 186 A.D.3d 1610 [2d Dept 2020]). Moreover, "in a slip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall" (Mallen v. Dekalb Corp., 181 A.D.3d 669 [2d Dept 2020]; Moiseyeva v. New York City Hous. Auth., 175 A.D.3d 1527 [2d Dept 2019]; see Bilska v. Truszkowski, 171 A.D.3d 685 [2d Dept 2019]; Singh v. City of New York, 136 A.D.3d 641 [2d Dept 2016]; Buglione v. Spagnoletti, 123 A.D.3d 867 [2d Dept 2014]; Diaz v. City of New York, 190 A.D.3d 940 [2d Dept 2021]; see also Cross v. Friendship, 154 A.D.3d 917 [2d Dept 2017]). "Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation" (Mallen v. Dekalb Corp., 181 A.D.3d 669 [2d Dept 2020] citing Ash v. City of New York, 109 A.D.3d 854, 855 [2d Dept 2013]).
DISCUSSION
From the onset, the court finds that the defendant failed to demonstrate that the surveillance video footage was properly authenticated and admissible evidence. (CPLR § 3212(b); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1984]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). Ordinarily, videos are admissible if the proponent lays the proper foundation and the probative value of the evidence outweighs any prejudice. (Caprara v. Chrysler Corp., 71 A.D.2d 515 [3d Dept 1979] affd 52 N.Y.2d 114, reg den 52 N.Y.2d 1073 [1981]; People v. Franzese, 154 A.D.3d 706 ). Furthermore, a videotape may be authenticated by a witness to the recorded events, testimony by the installer or maintainer of the equipment that the subject matter was accurately recorded, or chain of custody evidence establishing "acceptable inferences of reasonable accuracy and freedom from tampering" (People v. Patterson, 93 N.Y.2d 80 [1999]; see also Zegarelli v. Hughes, 3 N.Y.3d 64 [2004]; People v. Ely, 68 N.Y.2d 520 [1986]; People v. Franzese, 154 A.D.3d 706 ). Here the defendant failed to lay the proper foundation for the admissibility of the surveillance video footage.
Moreover, the evidence submitted in support of the defendant's own motion revealed a triable issue of fact as to whether the plaintiff was unable to identify the cause of her fall. Specifically, the defendant submitted a transcript of the plaintiffs deposition, at which she testified that while she was on the ground, she observed a hole or trap in the sidewalk, which cause her to fall. Therefore, the defendant did not establish its prima facie entitlement to judgment as a matter of law by showing that the plaintiff was unable to identify either the location or the cause of the accident." (see Davis v. Sutton, 136 A.D.3d 731, 732 [2d Dept 2016]; Gotay v. New York City Housing Auth., 127 A.D.3d 693 [2d Dept 2015]). N.Y.2d 976, 977 [1997] [internal quotation marks omitted], quoting Guerrieri v. Summa, 193 A.D.2d 647 [2d Dept 1993]; Platkin v. County of Nassau, 121 A.D.3d 879 [2d Dept 2014]; Turuseta v. Wyassup-Laurel Glen Corp., 91 A.D.3d 632, 633 [2d Dept 2012]; Copley v. Town of Riverhead, 70 A.D.3d 623 [2d Dept 2010]). However, a property owner may not be held liable for trivial defects, not constituting a trap, snare, or nuisance, over which a person might merely stumble, stub his or her toes, or trip (see Trincere v. County of Suffolk, 90 N.Y.2d at 977; Platkin v. County of Nassau, 121 A.D.3d at 880; Moses v. T-Mobile, 106 A.D.3d 967 [2d Dept 2013]; Schenpanski v. Promises Deli, Inc., 88 A.D.3d 982, 983 [2d Dept 2011]). In determining whether a defect is trivial, the court must examine all of 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 v. County of Suffolk, 90 N.Y.2d at 978 [internal quotation marks omitted]). There is no "minimal dimension test" or "per se rule" that a condition must be of a certain height or depth in order to be actionable (id. at 977; see Platkin v. County of Nassau, 121 A.D.3d at 879; Milewski v. Washington Mut., Inc., 88 A.D.3d 853 [2d Dept 2011]; Ricker v. Board of Educ. of Town of Hyde Park, 61 A.D.3d 735 [2d Dept 2009]). Photographs that fairly and accurately represent the accident site may be used to establish whether a defect is trivial and, therefore, not actionable (see Platkin v. County of Nassau, 121 A.D.3d at 880; Das v. Sun Wah Rest., 99 A.D.3d 752 [2d Dept 2012]). Here, the evidence submitted by the defendant in support of its motion, including the transcripts of the deposition testimony of the parties, surveillance footage of the sidewalk and Chris Valerakis ("Mr. Valerakis") was insufficient to demonstrate that the alleged defect was trivial as a matter of law and, therefore, not actionable (see Martyniak v. Charleston Enters. LLC, 118 A.D.3d 679 [2d Dept 2014]; Ortiz v. 82-90 Broadway Realty Corp., 117 A.D.3d 1016 [2d Dept 2014]; Sahni v. Kitridge Realty Co., Inc., 114 A.D.3d 837 [2d Dept 2014]; Shmidt v. JP Morgan Chase &Co., 112 A.D.3d 811 [2d Dept 2013]; Nagin v. K.E.M. Enters., Inc., 111 A.D.3d 901 [2d Dept 2013]; Brenner v. Herricks Union Free Sch. Dist., 106 A.D.3d 766 [2d Dept 2013]).
Since the defendant failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiffs opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1986]). Furthermore, summary judgement should not be granted where the facts are in dispute, where conflicting inference may be drawn from the evidence, or where there are issues of credibility." (Collado v. Jiacono, 126 A.D.3d 927 [2d Dept 2014] citing Scott v. Long Island Power Authority, 294 A.D.2d 348 [2d Dept 2002]; see also Bush v. St. Claire's Hospital, 82 N.Y.2d 738 [1993]; Fobbs v. Shore, 171 A.D.3d 874 [2d Dept 2019]).
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment, pursuant to CPLR § 3212, denied in its entirety; and it is further, ORDERED that plaintiff shall serve a copy of this decision and order with notice of entry upon the plaintiff on or before February 15, 2022.
The foregoing constitutes the decision and order of the court.