Opinion
14191/06.
Decided May 7, 2008.
Defendant 1920 WALTON MANAGEMENT, LLC (Defendant) s/h/a WALTON MANAGEMENT LLC moves seeking an Order granting it summary judgment over and against plaintiff. Defendant avers that insofar as the defect alleged to have caused plaintiff's accident and injury is trivial as a matter of law, defendant is entitled to summary judgment. Plaintiff opposes the instant motion averring that defendant has failed to establish prima facie entitlement to summary judgment and that questions of fact with regard to triviality of the defect herein preclude summary judgment in defendant's favor.
For the reasons that follow hereinafter defendant's motion is hereby denied.
The instant action is for alleged personal injuries stemming from the purported negligent maintenance of a premises. Plaintiff's complaint alleges that on December 24, 2005, plaintiff was injured within premises located at 1920 Walton Avenue, No. 6C, Bronx, NY, due to a defective condition existing therein. Plaintiff alleges that defendants were negligent in the maintenance, ownership and repair of the premises herein and that said negligence caused plaintiff's accident and injury. Within her bill of particulars and supplemental bill of particulars, plaintiff claims that defendants had both actual and constructive notice of the defective condition existing within the premises herein and despite same failed to correct the condition alleged. Plaintiff further alleges that defendant violated Administrative Code § 27-1031.
In support of the instant motion, defendant submits plaintiff's deposition transcript, wherein she testifies, in pertinent part, as follows. On December 24, 2005, she was involved in an accident while within the premises located at 1920 Walton Avenue, # 6C, Bronx, NY. Plaintiff resided at the premises herein with her daughter Janelle Ochoa (Janelle) and Janelle's two children. Apartment # 6C is a two bedroom apartment with one bedroom. On the date herein at about 4AM, plaintiff awoke with an urge to use the bathroom. She got out of bed, grabbed her cane, and proceeded to the bathroom. The bathroom was located off the hallway outside her bedroom. After getting out of bed, plaintiff turned on the light in her bedroom, exited her bedroom and proceeded into the bathroom, wherein the light was already on or plaintiff turned it on. After plaintiff finished using the bathroom, with the bathroom light still on, she proceeded to exit the bathroom. As she exited the bathroom the toes of her left foot became caught in a broken part of the door saddle located on the ground between the bathroom and the hallway. Thereafter, plaintiff fell to the ground. Plaintiff described the door saddle as a piece of marble about a half inch thick and four inches wide. The marble ran the length of the door frame. Plaintiff stated that the door saddle was broken on the bottom and in the middle. She described the broken area as a hole at the bottom of the door saddle. Said hole was empty, was an inch deep and about four inches long. Thereafter, Janelle came to bathroom and called an ambulance. Plaintiff first noticed the broken door saddle about four months prior to her fall. When she noticed the broken door saddle, she told the building's superintendent, who stated that she should contact the building's owner. Sometime thereafter and prior to the accident herein plaintiff made several other complaints to the superintendent regarding the door saddle and the superintendent actually reported to plaintiff's apartment and saw the broken door saddle. The superintendent had also seen the broken door saddle during an inspection performed by the City sometime prior to plaintiff's accident. During the inspection, the City inspector noticed that the door saddle was broken. The door saddle was repaired after plaintiff's accident.
Defendant submits a photograph, which was identified at plaintiff's deposition. Defendant laid the foundation for said photograph's admissibility insofar as it provided plaintiff's deposition transcript, wherein she testified that said photograph accurately depicted the broken door saddle as it appeared on the date of her accident. Said photograph depicts a marble door saddle which appears to be bisected in the middle. The portion of the door saddle depicted on the photograph's right side appears to be depressed or sit lower than the other. The portion of the saddle depicted on the photograph's left side also appears to have a crack running down one end. The same side is not flush with the bathroom floor insofar as there is a gap between the saddle and the floor.
Defendant submits Arthur Charles' (Charles) deposition transcript, wherein he testified, in pertinent part as follows. Charles is and was an inspector with the New York City Housing Authority. His duties include inspecting apartments which are part of the section 8 program. After reviewing records, he testified that he inspected plaintiff's apartment on November 29, 2005. His position required that he inspect the apartment for items listed on a form. Among the items pertinent to his inspection were roach infestation, whether the appliances were operable, and cracks in the floors or walls. Charles would also inspect any items brought to his attention by the tenant in a particular apartment. Charles would also note a broken door saddle if said condition existed at the time he performed his inspection. As a result of his inspection of plaintiff's apartment, he noted the absence of a carbon monoxide detector, a crack in the ceiling within a bedroom, an inoperable intercom, and mildew on the bathroom walls.
Defendant submits documents from the New York City Housing Authority. Said documents are uncertified and no foundation for their admissibility was laid.
Defendant submits Arnaldo Urbina's (Urbina) deposition transcript, wherein he testified, in pertinent pat, as follows. Urbina is and was the superintendent at the premises herein. His duties included making repairs and keeping the building clean. He recalls that he made several repairs within plaintiff's apartment, including fixing the ceiling, a hole in the wall and replacing a door saddle in the bathroom door frame. While he cannot recall when he made repairs to the apartment herein, he does recall that he was told about the broken door saddle after plaintiff had her accident. Thereafter, he repaired the same. He was told about the broken door saddle by plaintiff and her daughter.
In opposition to the instant motion, plaintiff submits portions of all deposition transcripts submitted by defendant. Plaintiff submits a copy of the photograph submitted by defendant and a photo copy of said photograph. While plaintiff fails to annex the portion of plaintiff's deposition testimony laying a foundation for the photo copy of the photograph herein, the Court deems the same admissible insofar as plaintiff, within her deposition stated that said photo copy was a copy of the photograph which she stated accurately depicted that the condition of the door saddle when she fell. She further testified that she marked said photo copy to indicate the area where her foot got caught. Said area is delineated by a circle around the portion of the photograph where the saddle fails to sit flush with the bathroom floor.
Plaintiff submits an affidavit from Janelle, wherein she states, in pertinent part, as follows. On December 25, 2004 upon hearing the plaintiff scream, she ran to the bathroom finding that the plaintiff lying on the floor between the hallway and the bathroom. The toes of plaintiff's left foot were caught in a hole in the door saddle separating the bathroom and hallway floor. Janelle described the saddle herein as being an inch higher than the floor surrounding it. It was cracked in the middle and separated from the bathroom floor. The separated area resulted in a hole an inch deep, resulting in a two inch elevation difference between the top of the saddle and the floor. The height difference was abrupt and about six inches in length. Janelle states that the photograph and photocopy of the same described by plaintiff does not depict the elevation difference between the saddle and floor. The condition herein existed for at least six months prior to the plaintiff's accident. Complaints were made to the superintendent prior to the accident and on two occasions the superintendent was shown the condition of the saddle herein.
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999). Additionally, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). In Phillips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witness' testimony and that witness' testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 34,1 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra).
See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano , 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Premises Liability and Common Law Negligence
Absent a duty of care to the person injured, a party cannot be held liable in negligence. Palsgraf v. Long Island R.R. Co., 248 NY 339 (1928). In cases where there is a duty and that duty is breached, a party is held to have acted negligently. To impose common-law negligence, the tort, the duty breached, must be the proximate cause of the accident. Misirlakis v. East Coast Entertainment Props., 297 AD2d 312 (2nd Dept. 2002).
The common law dictates that a landowner is duty bound to maintain his or her property in a reasonably safe condition. Basso v. Miller, 40 NY2d 253 (1976). Logically, the law dictates that reasonable care be utilized in the maintenance of the property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk. Id. This duty also obligates a landowner to warn against dangerous conditions, existing on his land, known or reasonably ascertainable by him through the use of reasonable and ordinary care. Cupo v. Karfunkel, 1 AD3d (2nd Dept. 2003). No duty to warn exists, however, if the dangerous condition complained of is open and obvious and reasonably discernible through the use of one's own senses. Id.; Orlando v. Audax Construction Corp. , 14 AD3d 500 (2nd Dept. 2005); Reuscher v. Pergament Home Centers, Inc., 247 AD2d 603 (2nd Dept. 1998); Jackson v. Supermarkets General Corporation, 214 AD2d 650 (2nd Dept. 1995). While the existence of an open and obvious condition negates a defendant's duty to warn of the same's existence, it does not negate a defendant's duty to abate said condition if the same is dangerous. Westbrook v. WR Activities-Cabrera Markets , 5 AD3d 69 (1st Dept. 2004); Orellana v. Merola Associates, Inc., 287 AD2d 412 (1st Dept. 2001); Tuttle v. Anne LeConey, Inc. 258 AD2d 334 (1st Dept. 1999); Cupo v. Karfunkel, 1 AD3d (2nd Dept. 2003). Stated differently, an open and obvious condition does not negate a defendant's duty to maintain his premises in a reasonably safe condition and instead bears on whether the plaintiff, in failing to see what was readily observable through the use of his or her senses, is comparatively negligent. Id. Additionally, Multiple Dwelling Law § 78 imposes a duty upon the owner of multiple dwelling to keep the same in a reasonably safe condition. Mas v. Two Bridges Associates, 75 NY2d 680 (1990); Altz v. Leiberson, 233 NY 16 (1921); Bonifacio v. 910-930 Southern Boulevard, LLC, 295 AD2d 86 (1st Dept. 2002).
Premises liability is by no means predicated solely on ownership. Liability for a dangerous condition on or within a property, is instead predicated upon occupancy, ownership, control or special use of the premises at issue. Balsam v. Delma Engineering Corporation, 139 AD2d 292 (1st Dept. 1998); Valmon v. 4M M Corporation, 291 AD2d 343 (1st Dept. 2002); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Millman v. CitiBank, N.A., 216 AD2d (2nd Dept. 1995); Bruhns v. Antonelli, 255 AD2d 478 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996). Additionally, it is well established that no liability will be found absent proof that a defendant actually created the dangerous condition or, alternatively, had actual or constructive notice of the same. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994); Bogart v. F.W. Woolworth Company, 24 NY2d 936 (1969); Armstrong v. Ogden Allied Facility Management Corporation, 281 AD2d 317 (1st Dept. 2001); Wasserstrom v. New York City Transit Authority, 267 AD2d 36 (1st Dept. 1999); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996).
A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986). The notice required must be more than general notice of any defective condition. Id.; Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). The law requires notice of the specific condition alleged at the specific location alleged. Id. A general awareness that a dangerous condition may exist, is insufficient to constitute notice of a particular condition alleged to have caused an accident. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). Instead, liability can only be predicated on defendant's failure to remedy a dangerous condition after actual or constructive notice of the condition. Id.
It is axiomatic that before negligence can be found it must be established that the accident causing instrumentality constitutes a dangerous condition, defect, or trap. Crawford v. Pick Quick Foods, Inc., 300 AD2d 431 (2nd Dept. 2002); Garry v. Rockville Centre Union Free School District, 272 AD2d 437 (2nd Dept. 2000); Reynolds v. Reynolds, 245 AD2d 498 (2nd Dept. 1997).
Trivial Defect
Generally, whether a dangerous condition exists within and upon a property or premises so as to create liability, is a question of fact to be decided by a jury. Trincere v. County of Suffolk, 90 NY2d 976 (1997); Hargrove v. Baltic Etates, 278 AD2d 278 (2nd Dept. 2000). However, it is equally well settled that in cases where a condition, which is alleged to constitute a danger, is trivial or de minimis in nature, the court can decide whether the condition is actionable as a matter of law. Id. There is no bright line rule to be applied in determining whether a defect is trivial as a matter of law. Id. Instead, when the court endeavors to make such a determination, it should not be guided solely by the dimensions of such a defect but should also take into account the width, depth, elevation, irregularity and appearance of the defect as well as the time, place, and circumstance of the injury. Trincere v. County of Suffolk, 90 NY2d 976 (1997). In deciding whether the defect alleged is trivial, the court should also consider whether other conditions exist such as weather, location, or adverse lighting, which make an otherwise trivial defect an actionable hazard. Gaud v. Markham, 307 AD2d 845 (1st Dept. 2003); Melendez v. Dobra, 301 AD2d 453 (1st Dept. 2003).
Time and time again, courts have held that defects, which are minute and/or insignificant, are not actionable and in cases where such defects have been alleged, courts have routinely granted summary judgment in favor of the defendant and against the plaintiff. Tricere v. County of Suffolk, 90 NY2d 976 (1997); Bullock v. Anthony Equities, Ltd. , 12 AD3d 326 (1st Dept. 2004); Gaud v. Markham, 307 AD2d 845 (1st Dept. 2003); Martin Lafayette Morrison Housing Corp., 31 AD3d 300 (1st Dept. 2006); D'Arco v. Pagano , 21 AD3d 1050 (2nd Dept. 2005); Dynov v. 16th Avenue Realty Associates, LLC, 292 AD2d 335 (2nd Dept. 2002); Hargrove v. Baltic Estates, 278 AD2d 278 (2nd Dept. 2000); Morales v. Riverbay Corporation, 226 AD2d 271 (2nd Dept 1996); Mascaro v. State of New York, 46 AD2d 941 (2nd Dept 1974); Guerrierri v. Summa, 193 AD2d 647 (2nd Dept. 1993). In Trincere, the court held that and height differential of over one half an inch between the surrounding ground and an angled concrete slab was trivial as a matter of law. In Hargrove, the court granted defendant summary judgment holding that the door saddle over which plaintiff tripped, to the extent that it was only raised three quarters of an inch, was trivial and thus not actionable. Hargrove v. Baltic Estates, 278 AD2d 278 (2nd Dept. 2000). In D'Arco, the court granted defendant's motion for summary judgment, concluding that the door saddle over which plaintiff tripped, which was raised one and sixteenth inches over the adjacent carpeted floor was trivial as it did not have the characteristics of a trap or snare. D'Arco v. Pagano , 21 AD3d 1050 (2nd Dept. 2005). In Bullock, the court granted defendant's motion for summary judgment, concluding that the door saddle over which plaintiff tripped, which was raised three quarters of an inch over the adjacent floor was trivial as it did not have the characteristics of a trap or snare. Bullock v. Anthony Equities, Ltd. , 12 AD3d 326 (1st Dept. 2004). In Morales, and Riser, the court held that a height differential between the sidewalk and a tree grate of three-quarters of an inch was trivial as a mater of law. Morales v. Riverbay Corporation, 226 AD2d 271 (2nd Dept 1996); Riser v. New York City Housing Authority, 260 AD2d 564 (2nd Dept 1999). In Figueroa, the Court found that a depression on a walkway causing a height differential of over one and one half inches was trivial as a matter of law and thus not actionable. Figueroa v. Haven Plaza Housing Development Co., Inc., 247 AD2d 203 (1st Dept 1998).
Time and time again, however, courts have held that whether a particular condition is trivial is an issue to be decided by a jury. Tieno v. Parkchester South Condominium, 304 AD2d 383 (1st Dept. 2003); Gerber v. West Hempstead Convenience, Inc., 303 AD2d 212 (1st Dept. 2003); Cela v. Goodyear Tire Rubber Company, 286 AD2d 640 (1st Dept. 2001); Argenio v. Metropolitan Transportation Authority, 277 AD2d 165 (1st Dept. 2000); Gutierrez v. Riverbay Corporation, 262 AD2d 64 (1st Dept. 1998); Herrera v. City of New York, 262 AD2d 120 (1st Dept, 1999); Young v. City of New York, 260 AD2d 383 (1st Dept. 1998); Rivera v. 2300 X-tra Wholesalers, Inc., 239 AD2d 268 (1st Dept. 1997); McKenzie v. Crossroads Arena, LLC, 291 AD2d 860 (4th Dept. 2002). However, a review of the cases just cited evinces that for the most part, the court declined to find that the defects therein were not trivial as a matter of law for reasons other than the depth of a particular condition. In Gerber, the court, presumably taking into account the size of the tile, found that whether a missing floor tile was trivial was a question of fact for the jury. Gerber v. West Hempstead Convenience, Inc., 303 AD2d 212 (1st Dept. 2003). In Cela, the court concluded that although the defect alleged was less than one inch deep, the fact the said defect was"an irregular, zig-zag-like depression, between a foot and two feet in length, with sharp rather than gradual edges . . ." barred the court from concluding that said defect was trivial as a matter of law. Cela v. Goodyear Tire Rubber Company, 286 AD2d 640, 641 (1st Dept. 2001). In Argenio, the court could not conclude that a defect, a quarter inch deep, was trivial insofar as it was located in an area where the same was obscured by large numbers of people. Argenio v. Metropolitan Transportation Authority, 277 AD2d 165 (1st Dept. 2000). In McKenzie, the court denied defendant's motion for summary judgment which sough dismissal on grounds that plaintiff tripped over a de minimis defect, namely a three quarter height difference between concrete slabs on the sidewalk. McKenzie v. Crossroads Arena, LLC, 291 AD2d 860 (4th Dept. 2002). The court concluded that insofar as the height difference was abrupt as opposed to gradual and that said defect was located in a dimly lit area on a misty night, whether this otherwise trivial defect was a hazard was a question of fact to be determined by a jury. Id.
Discussion
Defendant's motion seeking summary judgment over and against plaintiff is hereby denied insofar as it has failed to establish prima facie entitlement to summary judgment. A review of the evidence submitted by defendant evinces that with regard to the triviality of the defect alleged herein, the grounds upon which defendant seeks dismissal, the Court, given the nature of the defect, cannot conclude that the same is trivial as a matter of law. Having come to that conclusion, defendant would nonetheless be entitled to summary judgment if it negates creation of the condition herein and prior notice of the same. However, defendant does not seek summary judgment on creation or notice grounds, nor could they, since a review of the very evidence submitted by defendant fails to negate prior notice, beyond factual dispute.
A review of the very evidence submitted by defendant, namely plaintiff's testimony and the photograph identified by her at her deposition, evinces that the defect herein cannot be deemed de minimus as a matter of law. Generally, whether a dangerous condition exists within and upon a property or premises so as to create liability is a question of fact to be decided by a jury. However, it is equally well settled that in cases where a condition, which is alleged to constitute a danger, is trivial or de minimis in nature, the court can decide whether the condition is actionable as a matter of law. When the court endeavors to make such a determination, it should not be guided solely by the dimensions of such a defect and instead should take into account the width, depth, elevation, irregularity and appearance of the defect as well as the time, place, and circumstance of the injury. While the cases where the court has decided that a defect is trivial as a matter of law are legion, said cases almost always involve a defect, whose defectiveness stems from nothing more than a slight height difference. Conversely, courts have routinely declined to rule that conditions are trivial as a matter of law when the condition alleged is dangerous for reasons other than a slight height difference. Specifically, courts have declined to rule that a condition is trivial when the defect alleged, although slight in depth or resulting in minimal height difference, is jagged, is substantial in width, is abrupt in grade, or is obscured by weather, lack of light, or pedestrian traffic. This is because logic dictates that even a trivial defect can constitute a hazard under certain conditions.
In this case, defendant submits plaintiff's deposition transcript, wherein she states that she tripped when her toes became caught in a door saddle. Plaintiff described the door saddle as a piece of marble about a half inch thick and four inches wide. Plaintiff stated that the door saddle was broken on the bottom and in the middle. She described the broken area as a hole at the bottom of the door saddle. Said hole was empty, was an inch deep and about four inches long. Defendant also submits a photograph of the door saddle herein. Said photograph depicts a marble door saddle which appears to be bisected in the middle. The portion of the door saddle depicted on the photograph's right side appears to be depressed or sit lower than the other. The portion of the saddle depicted on the photograph's left side also appears to have a crack running down one end. The same side is not flush with the bathroom floor insofar as there is a gap between the saddle and the floor. Based on the foregoing, it is clear that the defect herein cannot be deemed trivial as a matter of law. Plaintiff's testimony establishes that the defect in the door saddle, which caused her fall, creates a height difference of one and one half inches between the top of the door saddle and the surrounding floor (door saddle is half an inch thick and hole is an inch deep). Moreover, plaintiff, testified that the defect in the door saddle also had a length of four inches. The photograph submitted by defendant while not bolstering plaintiff's testimony, nevertheless depicts a door saddle with at least one crack and a gap between it and the bathroom floor. Accordingly defendant's evidence fails to establish that the defect herein is trivial as a matter of law since plaintiff describes a defective condition of substantial length, four inches, and depth, one and one half inches. The photograph further depicts a door saddled plagued with several cracks and a gap between it and the surrounding floor. Thus, under these circumstances, given the defect alleged, defendant fails to establish that the defect herein is trivial and as such, fails to establish prima facie entitlement to summary judgment on this ground.
Although defendant does not seek summary judgment on grounds that it did not create the condition herein nor did it have prior notice of the same, it bears mentioning that the very evidence submitted by defendant, namely plaintiff's deposition testimony precludes prima facie entitlement to summary judgment on grounds that there was no prior notice or that it did not create the condition alleged. It is well settled that a defendant cannot be held liable for the existence of a dangerous condition upon his property absent evidence that said defendant created the condition alleged or had prior notice of the same. Actual notice is of course first hand knowledge and constructive notice is evidence demonstrating that the condition existed for a period of time substantial enough to have allowed defendant, through the use of ordinary care, to find and remedy the same. In this case, plaintiff testified that she had first noticed the broken saddle herein four months prior to her accident. She further testified that she and her daughter made complaints regarding the saddle to the building's superintendent and to the management office. Plaintiff further testified that the superintendent had been shown the condition herein on several occasions prior to her accident. Defendant also submitted Urbina's deposition testimony, wherein he, the superintendent, denied ever being told about the condition herein prior to plaintiff's accident. Urbina never testified, concededly because he was never asked, whether defendant created the condition herein and whether defendant installed the broken door saddle. Based on the foregoing, notwithstanding defendant's failure to seek summary judgment on creation or notice grounds, the evidence submitted by defendant would nonetheless preclude prima facie entitlement to summary judgment on said grounds. Preliminarily, defendant fails to proffer any evidence establishing that the condition herein was not caused or created by it. This alone is fatal since it constitutes a failure to negate a crucial element for purposes of liability. Had defendant sought summary judgment on creation or notice grounds this alone warrants denial on any motion premised upon said grounds. With regard to actual notice, defendant, through Urbina, negates prior actual notice of the broken door saddle herein. However, plaintiff's testimony controverts the same, thereby creating a question of fact precluding prima facie entitlement to summary judgment on actual notice grounds. With regard to constructive notice, insofar as plaintiff testified to the existence of the condition herein for four months prior to the accident herein coupled with her testimony that Urbina visited her apartment to make other repairs during that very period, defendant's evidence establishes that the defect herein existed for a substantial period of time and that defendant was in a position to observe the same. Thus, defendant's evidence fails to negate constructive notice. For all the reasons cited above, defendant fails to establish prima facie entitlement to summary judgment and as such its motion is hereby denied. To the extent that defendant failed to meet its burden, the Court need not discuss plaintiff's opposition papers and the evidence annexed thereto. It is hereby
ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.
This constitutes this Court's decision and Order.