McCullough v Riverbay Corp.
Annotate this CaseDecided on May 30, 2017
Acosta, P.J., Friedman, Andrias, Webber, Gesmer, JJ.
4141 20429/14E
[*1]Audrey McCullough, Plaintiff-Respondent,
v
Riverbay Corporation, Defendant-Appellant.
Malapero & Prisco, LLP, New York (Jeffrey N. Rejan of counsel), for appellant.
Mallilo & Grossman, Flushing (Joanna J. Lambridis of counsel), for respondent.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered September 30, 2016, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant established entitlement to judgment as a matter of law by demonstrating that the defect in the sidewalk that allegedly caused plaintiff to trip and fall was trivial, and that there were no surrounding circumstances that magnified the dangers it posed (see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 77—78 [2015]). Defendant submitted photographs and measurements, which showed that the height differential between the expansion joint and the sidewalk flags was less than half an inch. The photographs did not depict any jagged edges or any rough, irregular surface, and the expansion joint was not difficult to see or pass over safely on foot, given plaintiff's testimony that the accident occurred on a sunny day and she was the only person traversing the pathway. Plaintiff's testimony that the defect was two-to-four inches high was speculative, since she did not measure the defect (see Vazquez v JRG Realty Corp., 81 AD3d 555 [1st Dept 2011]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 30, 2017
CLERK
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
