Opinion
2013-11-26
Martha MUNASCA, Plaintiff–Appellant, v. MORRISON MANAGEMENT LLC, et al., Defendants–Respondents.
Rosenberg, Minc, Falkoff & Wolff, LLP, New York (Carmen A. Mesorana of counsel), for appellant. Thomas M. Bona, P.C., White Plains (Anthony M. Napoli of counsel), for respondents.
Rosenberg, Minc, Falkoff & Wolff, LLP, New York (Carmen A. Mesorana of counsel), for appellant. Thomas M. Bona, P.C., White Plains (Anthony M. Napoli of counsel), for respondents.
MAZZARELLI, J.P., ACOSTA, MOSKOWITZ, MANZANET–DANIELS, GISCHE, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered August 22, 2012, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Defendants failed to establish entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she tripped and fell on a sidewalk defect in front of premises owned and operated by defendants. The pictures submitted by defendants in support of their motion do not unequivocally demonstrate that the complained-of defect is trivial as a matter of law since its size is not discernable and the photos appear to show that the defect has an edge, which could constitute a tripping hazard ( see Abreu v. New York City Hous. Auth., 61 A.D.3d 420, 876 N.Y.S.2d 50 [1st Dept.2009] ). There is also no evidence showing the defect's dimensions at the time of the accident ( see Valentin v. Columbia Univ., 89 A.D.3d 502, 503, 932 N.Y.S.2d 73 [1st Dept.2011] ).
Defendants' reliance on plaintiff's testimony that the height difference between the sidewalk flags at the time of her accident was approximately one inch, is insufficient to satisfy their prima facie burden, since the testimony was at best an estimate of the actual size of the defect, and was not based on an actual measurement ( cf. Vazquez v. JRG Realty Corp., 81 A.D.3d 555, 917 N.Y.S.2d 562 [1st Dept.2011] ). Furthermore, plaintiff's deposition testimony suggesting that, because “there were a lot of people at the bus stop” at the time of the accident, it was difficult to detect the defect, raises factual questions requiring a trial ( see Argenio v. Metropolitan Transp. Auth., 277 A.D.2d 165, 166, 716 N.Y.S.2d 657 [1st Dept.2000] ).
Defendants' argument that they were not responsible for the defect either because it was “patchwork” around a lamp post, or because it was at a bus stop is unavailing. The photographs in the record do not appear to depict patchwork for which the City might be responsible ( see Administrative Code of City of N.Y. § 19–152[a] ), and defendants submitted no evidence to establish that the area was a designated bus stop maintained by the City ( cf. Phillips v. Atlantic–Hudson, Inc., 105 A.D.3d 639, 963 N.Y.S.2d 582 [1st Dept.2013] ).